NOTES FILLING THE GAP? NON-ABROGATION PROVISIONS AND THE ASSIMILATIVE CRIMES ACT. Nikhil Bhagat *

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1 NOTES FILLING THE GAP? NON-ABROGATION PROVISIONS AND THE ASSIMILATIVE CRIMES ACT Nikhil Bhagat * Federal enclaves those areas within the physical territory of states but owned by the federal government are areas of exclusive federal jurisdiction. As such, state criminal laws are ordinarily inapplicable there. The Assimilative Crimes Act (ACA) provides for the federal assimilation of state criminal law in federal enclaves under certain circumstances. The ACA is only applicable where the actions at issue are not otherwise criminalized by another existing enactment of Congress. The enactment of Congress standard has been held to encompass federal regulations as well as statutes. In Lewis v. United States, the Supreme Court declared that the intent of Congress is the cornerstone of whether an existing congressional enactment covers a particular criminal act. This Note discusses how courts should find congressional intent when a federal regulation that criminalizes conduct, or criminal regulation, that might otherwise prohibit assimilation under the ACA, is accompanied by a non-abrogation provision a regulatory provision that declares that the relevant criminal regulation is not intended to abrogate any other state or federal law. It concludes that in order to determine whether a federal criminal regulation precludes assimilation of a state law under the ACA, courts should use ordinary principles of administrative jurisprudence, particularly the Chevron doctrine, to give significant deference to non-abrogation provisions as reflecting the clear intent of the issuing agency, and ultimately, that of Congress. INTRODUCTION The Founders believed in a limited federal government, 1 but one might never know it from the current state of the law. The most recent revision of Title 18, the part of the United States Code that covers crimes and criminal procedure, spans nearly 1,000 pages, 2 and that does not include the hundreds upon hundreds of laws that have yet to be codified. 3 * J.D. Candidate 2011, Columbia Law School. 1. See Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders Search for a Workable Balance Between Federal and State Power, 26 Am. Crim. L. Rev. 1261, (1989) (describing Framers intent to use states to check federal government s power). 2. See 18 U.S.C. (2006). 3. See, e.g., U.S. Gov t Printing Office, Public and Private Laws: Browse 111th Congress ( ), at public_laws&template=plaws.tpl (on file with the Columbia Law Review) (last updated Sept. 30, 2010) (listing public and private laws that have passed both chambers of Congress and have been signed by the President). After the President signs a bill into law, it is assigned a 77

2 78 COLUMBIA LAW REVIEW [Vol. 111:77 Indeed, the body of substantive federal criminal law (and enforcement of that law) has been on the rise since the earliest days of the republic. 4 And Title 18 is by no means the entirety of federal criminal law. Such law may also be derived from other titles of the U.S. Code, the Constitution, 5 federal regulations, 6 and common law. 7 To make matters more complex, the boundaries of federal criminal enforcement do not stop at federal public or private law number, and at the conclusion of every session of Congress, those laws are published as the Statutes at Large. Finally, the Statutes at Large are codified in the United States Code every six years. U.S. Gov t Printing Office, Public and Private Laws: About, at (on file with the Columbia Law Review) (last updated Feb. 6, 2009). Because of the several steps involved in this process, there are many bills that have been passed into law but are not yet codified in the U.S. Code. The last printing of the U.S. Code was in See U.S. Gov t Printing Office, United States Code: About, at (on file with the Columbia Law Review) (last updated June 9, 2010) (noting U.S. Code has been published every six years since 1926). 4. See generally Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1136 (1995) (exploring evolution of federalization phenomenon ). Yet, many have argued that the expansion of the federal criminal law, especially in the last few decades, has been largely symbolic. See, e.g., Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J. 979, 981 (1995) ( When Congress has chosen to legislate by adding new federal crimes, it has neither preempted state law as a formal matter nor provided sufficient resources to supplant state enforcement as a practical matter. ). 5. The Constitution defines only one crime explicitly. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. U.S. Const. art. III, 3, cl. 1. However, various constitutional provisions allude to crimes and criminal procedure. See, e.g., id. art. II, 4 (prescribing removal of officers of United States upon conviction of certain crimes); id. art. III, 2, cl. 3 (providing venue and jury requirements for criminal trials); id. amend. V (requiring indictment by Grand Jury and prohibiting double jeopardy and compelled selfincrimination); id. amend. VI (protecting criminal defendant s right to speedy trial, assistance of counsel, and confrontation of adverse witnesses). 6. See infra Part I.C (discussing so-called criminal regulations ). 7. Although it has been well established since the middle of the twentieth century that there is no federal general common law, Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938), specific federal common law is still with us, and in abundance. The federal courts have created their own common law by drawing on state law, English practice, and in some cases, their own wisdom. See Clearfield Trust Co. v. United States, 318 U.S. 363, (1943) ( In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards. ); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, (1986) (describing various sources of federal common law and factors courts take into account when developing it). One specific example of federal courts using common law in the criminal realm may be found in the context of rape the federal rape statute does not define elements of the crime, so courts have looked to the common law to determine the elements. See infra note 75 and accompanying text.

3 2011] NON-ABROGATION PROVISIONS AND THE ACA 79 law. 8 The federal Assimilative Crimes Act (ACA) 9 provides for the incorporation of state offenses in areas of federal jurisdiction. Certainly, the ACA is not the only statute that grants federal jurisdiction over statedefined offenses, 10 but because it applies to areas in all fifty states and is 8. As one commentator has noted: Given the efficiency and fairness benefits associated with uniform application of federal criminal law and the manifest desire of the federal government to impose its will upon the states, one might think that the U.S. Government would look exclusively to its own law. However... in a variety of criminal justice contexts federal practice defies this expectation. Wayne A. Logan, Creating a Hydra in Government : Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, (2006). There are various contexts in which the federal courts resort to state criminal laws. See infra note U.S.C. 13(a) (2006). 10. For example, the Civil Rights Act of 1866 allowed the federal courts concurrent jurisdiction over both civil and criminal cases affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act. Civil Rights Act of 1866, ch. 31, 3, 14 Stat. 27, 27. In 1900, Congress incorporated state laws relating to fish and wildlife. Act of May 25, 1900, ch. 553, 31 Stat. 187, (codified at 16 U.S.C. 701, (2006)). Another statute may be regarded as the civil equivalent of the Assimilative Crimes Act, giving potential plaintiffs on federal enclaves full access to the tort law in the surrounding state or territorial jurisdiction. 16 U.S.C The modern era has also provided an accumulation of incorporation laws. See, e.g., 18 U.S.C (incorporating state felonies as predicates for RICO charges); id. 1952(b) (criminalizing interstate travel and commerce in relation to unlawful activity, defined as including violation of the laws of the State in which they are committed ); id. 1153(b) (providing specific crimes committed in Indian country shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense ); 36 C.F.R. 4.2 (2009) (establishing National Park Service regulation prohibiting violation of state traffic laws). Finally, the federal officer removal statute allows federal officers prosecuted in state court for violations of state law to remove their cases to federal court, as long as the actions at issue were taken in the course of their official duties. 28 U.S.C. 1442(a) (2006). See also id. 1442a (allowing removal of prosecutions of military personnel). This results in a peculiar situation: A criminal defendant is prosecuted by a state prosecutor for a violation of a state criminal statute in federal court. The trial is bound by the Federal Rules of Criminal Procedure, and the jury is drawn from the federal district, not the local county. See Kenneth S. Rosenblatt, Removal of Criminal Prosecutions of Federal Officials: Returning to the Original Intent of Congress, 29 Santa Clara L. Rev. 21, 23 25, 85 (1989) (describing procedural logistics of removed prosecutions). See generally Tennessee v. Davis, 100 U.S. 257, 271 (1879) (upholding constitutionality of removal of criminal cases from state courts to federal courts); Seth P. Waxman, Federalism, Law Enforcement, and the Supremacy Clause: The Strange Case of Ruby Ridge, 51 U. Kan. L. Rev. 141 (2002) (discussing case of FBI sniper who removed local prosecution to federal court); Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J (2003) (discussing, in federalism context, when states may prosecute federal officers for criminal conduct). But see Mesa v. California, 489 U.S. 121, 139 (1989) (noting federal officer removal requires defendant to raise colorable federal defense); Elizabeth M. Johnson, Note, Removal of Suits Against Federal Officers: Does the Malfeasant Mailman Merit a Federal Forum?, 88 Colum. L. Rev. 1098, 1113 (1988) (arguing 1442 removal should apply only where there is colorable federal defense).

4 80 COLUMBIA LAW REVIEW [Vol. 111:77 not limited to any particular type of criminal law, it is perhaps the most widely applicable. Yet, in part because the ACA is utilized almost exclusively for lesser crimes, and over ninety-five percent of federal criminal charges are adjudicated via plea bargain, 11 relatively few published decisions have engaged the ACA, and even fewer scholars have done so. 12 As a result, the ACA has received little analytical treatment. One disputed provision of the ACA is its requirement that in order to be assimilated, a state crime may not have a federal counterpart. 13 That is, if a defendant s conduct is made punishable by any enactment of Congress, 14 she cannot be prosecuted for violating an assimilated state statute; rather, any prosecution must be brought under the federal prohibition. This language has been subject to varying interpretations, but jurisprudence on the issue is mixed at best. 15 With the rise of federal agency regulations that criminalize conduct, the issue has become more complicated. Some of these regulations include a non-abrogation provisions a type of savings clause that indicates that the criminal regulations themselves are not intended to interfere with any other laws. Nonabrogation provisions, like other federal regulations, are not directly passed by Congress, but are drafted and enacted by executive agencies, pursuant to statutory authorization. 16 In Lewis v. United States, the U.S. Supreme Court declared that congressional intent is the cornerstone of the inquiry when deciding whether a congressional enactment precludes prosecution under an assimilated state statute. 17 In spite of Lewis s emphasis, at least one federal court of appeals has rejected the import of non-abrogation provisions, considering them immaterial where the enactment of Congress in question criminalizes conduct similar to that criminalized by state law. 18 This rejection calls into question federal prosecutors ability to utilize the ACA in the face of federal criminal regulations that criminalize conduct similar to that covered by state statutes. Despite the Supreme Court s insistence on using congressional intent to determine the preclusive effect of a congressional enactment, the Court has provided little guidance to the lower courts on where to find 11. Ronald Jay Allen et al., Comprehensive Criminal Procedure 1161 (2d ed. 2005). The Federal Rules of Criminal Procedure explicitly contemplate waiver of the right to appeal as a condition of a plea. Fed. R. Crim. P. 11(b)(1)(N). But see id. R. 11(a)(2) (allowing for entry of conditional plea agreements); Allen et al., supra, at (discussing conditional plea agreements that preserve defendant s right to appeal one or more specified issues). 12. For a collection of literature that addresses the ACA, see infra note U.S.C. 13(a). 14. Id. 15. See infra Part II. 16. The default statutory authority for most administrative action comes from the Administrative Procedure Act, 5 U.S.C (2006), discussed infra at note 149 and accompanying text. 17. Lewis v. United States, 523 U.S. 155, 166 (1998). 18. United States v. Waites, 198 F.3d 1123, 1130 (9th Cir. 2000). For further discussion of Waites, see infra Part II.B.2.

5 2011] NON-ABROGATION PROVISIONS AND THE ACA 81 this intent. This Note argues that courts, under both the Supreme Court s explicit reasoning in Lewis v. United States 19 and its seminal holding in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 20 should regard non-abrogation provisions as representing congressional intent when analyzing whether a defendant s act or omission is criminalized by an enactment of Congress for the purposes of precluding an ACA prosecution. Part I describes the history and purpose of the Act, and its utility within the criminal justice system. It also summarizes the Supreme Court s limited guidance on the ACA s enactment of Congress clause. Part II describes how courts have treated non-abrogation clauses in the past, both within and without the context of the ACA. Finally, Part III describes legal frameworks that support the idea that congressional intent should be imputed to non-abrogation provisions and concludes that the Supreme Court s jurisprudence, especially its pronouncements on Chevron deference, requires that these provisions be given substantial deference in the context of determining whether assimilation of a state law under the ACA is preempted by an enactment of Congress. I. THE ASSIMILATIVE CRIMES ACT AND ITS PLACE WITHIN THE FEDERAL CRIMINAL FRAMEWORK The ACA was originally enacted in the eighteenth century as a measure of necessity in a burgeoning republic. While the federal role in law enforcement increased dramatically over the next one hundred years, the ACA, an erstwhile federal law, remained a lone bastion of federalism. The ACA, in lieu of creating new criminal law on federal property, adopts the judgment of state legislatures for acts on federal enclaves. But the ACA only applies where the act in question has not been previously criminalized by any enactment of Congress. This enactment of Congress requirement has been the source of much conflict. Part I.A illustrates the evolution of the ACA. Part I.B discusses the ACA s enactment of Congress requirement. Finally, Part I.C describes the relationship between administrative regulations and the ACA. A. The Evolution of the Assimilative Crimes Act The U.S. Constitution gives the federal government exclusive jurisdiction within so-called federal enclaves. 21 As a result, state penal laws U.S Lewis is discussed infra at Part I.B U.S. 837 (1984). 21. The Constitution provides: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings.

6 82 COLUMBIA LAW REVIEW [Vol. 111:77 are inapplicable there. Besides the District of Columbia, 22 federal enclaves over which the government has exclusive jurisdiction essentially consist of all places acquired by the [national] Government, with the consent of the State involved, for Federal works. 23 Some common types of federal enclaves are national parks, military bases, and government buildings. 24 The ACA 25 is a federal statute that provides that if an indi- U.S. Const. art. I, 8, cl. 17; see also 18 U.S.C. 7 (2006) (defining other areas coming within special maritime and territorial jurisdiction of the United States ). In the early twentieth century, there was significant dispute as to what exactly constituted an area of exclusive federal jurisdiction, but the issue is now generally an uncontested one. It is now settled that the jurisdiction acquired from a state by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments. James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99 (1940). See generally Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 373 (1964) (commenting grant of jurisdiction by a State to the Federal Government need not be accepted ); Ben Miller, Note, Assimilation, Enclaves, and Take: How States Might Protect Wildlife on Federal Reservations, 22 J. Envtl. L. & Litig. 383, (2007) (describing way of using ACA to enforce state endangered species laws on federal land). In a number of areas, the state and federal governments may have concurrent jurisdiction. See 2 Interdepartmental Comm. for the Study of Jurisdiction over Fed. Areas Within the States, Jurisdiction over Federal Areas Within the States (Gov t Printing Office 1956) [hereinafter Jurisdiction over Federal Areas]. Also, although the federal government may have exclusive legislative jurisdiction over these enclaves, states may still retain adjudicative jurisdiction. Peter Nicolas, American-Style Justice in No Man s Land, 36 Ga. L. Rev. 895, 1001 n.720 (2002). The distinction between legislative and adjudicative jurisdiction is, however, beyond the scope of this Note. 22. See infra note Jurisdiction over Federal Areas, supra note 21, at Examples of these enclaves include the Golden Gate National Recreation Area in California, Fort Hood in Texas, Lake Mead in Nevada, and the Pentagon in Virginia. The federal government owns land in all fifty states, totaling approximately thirty percent of the land in the United States. U.S. Dep t of the Interior, National Atlas of the United States, Printable Maps Federal Lands, at (on file with the Columbia Law Review) (last modified Sept. 15, 2010). For an illuminating, illustrative look at the federal government s reach, see U.S. Dep t of the Interior, National Atlas of the United States, Federal Lands and Indian Reservations, at (on file with the Columbia Law Review) (last visited Nov. 3, 2010). The first, and perhaps most distinctive, federal enclave is the District of Columbia. See 1 Jurisdiction over Federal Areas, supra note 21, at 1. Since the District is not located in any state, the ACA is not strictly federalizing state law when applied there. However, by its explicit terms, the ACA provides for the assimilation of congressionally approved D.C. law. See 18 U.S.C. 13(a); see also Richardson v. U.S. Dep t of Interior, 740 F. Supp. 15, 20 (D.D.C. 1990) (recognizing ACA transform[s] District of Columbia Law into federal law ). 25. The Act may be found in its current form at 18 U.S.C. 13. The Supreme Court has referred to the statute at issue as the Assimilative Crimes Act, at least since its seminal decision in Williams v. United States, 327 U.S. 711 (1946). Many advocates and courts since then, however, have instead referred to the Act as the Assimilated Crimes Act. See, e.g., United States v. Rocha, 598 F.3d 1144, 1147 (9th Cir. 2010); United States v. Spivey, No. CR ACK, 1992 WL , at *1 (9th Cir. Feb. 19, 1993); United States v. Butler, 541 F.2d 730, 731 (8th Cir. 1976); United States v. Pardee, 368 F.2d 368, 372 (4th Cir. 1966). This Note, following the lead of its academic predecessors and the Supreme Court, refers to the law as the Assimilative Crimes Act.

7 2011] NON-ABROGATION PROVISIONS AND THE ACA 83 vidual commits an act or omission in an area of federal jurisdiction that is a violation of the law of the state in which the enclave is located, that individual may be prosecuted for the state crime in federal court, and is subject to a punishment similar to that which would be imposed by a state court. 26 In essence, then, the ACA is a vehicle that gives U.S. Attorneys the ability to federalize state criminal law. 27 Originally enacted as part of the Federal Crimes Act of 1825, 28 at a time when there were fewer federal crimes, 29 the ACA was envisioned as a gap filling measure that would operate as a sort of default body of criminal law on federal land. Moreover, it was a powerful tool for federal prosecutors in an era when cross-jurisdictional criminals were likely to escape punishment. 30 Justice Joseph Story, who is regarded as the originator of the ACA, made an urgent plea for its necessity: The criminal Code of the United States is singularly defective and inefficient.... Few, very few, of the practical crimes... are now punishable by statutes, and if the courts have no general common-law jurisdiction... they are wholly dispunishable. The 26. See Note, The Federal Assimilative Crimes Act, 70 Harv. L. Rev. 685, 685, 692 (1957) (exploring scope and penalty provisions of ACA). See generally J.H.M., Note, The Assimilative Crimes Act, 7 U. Rich. L. Rev. 116, 129 (1972) (concluding ACA is singularly ineffective, inefficient, and unjust ); James C. Waller, Jr., Comment, Assimilative Crimes Act State Laws Assimilated, 2 Mil. L. Rev. 107 (1958) (discussing assimilation of state laws and its interaction with UCMJ); Dennis M. Corrigan & Kit Hunter, The Case of the Missing Crime or When Is a Speed Limit Not a Speed Limit?, Army Law., Aug. 1977, at 1 (examining whether ACA allows military installation commanders to enforce traffic regulations with criminal sanctions); R.E. Cummings, The Assimilative Crimes Act, JAG J., Nov. 1952, at 4 (discussing various problems with ACA prosecutions in military context); Walter I. Horlick, The Assimilative Crimes Act, U.S.A.F. JAG Bull., Sept. 1961, at 21 (describing history of ACA and its utility in military context); Kevin Thomas Longergan, Defense Strategies and Perspectives Concerning the Assimilative Crimes Act, Army Law., Aug. 1986, at 57 (discussing possible defenses to ACA in military context). 27. The ACA only adopts state substantive law. Since the eventual crime charged is a federal one, federal rules of procedure apply. See United States v. Pluff, 253 F.3d 490, 494 (9th Cir. 2001) (noting ACA is not meant to adopt all of state law); Smayda v. United States, 352 F.2d 251, 253 (9th Cir. 1965) (same). It has been argued that contrary to the envisioned purpose of equalizing the circumstances of defendants within and without federal enclaves, the lack of procedural assimilation actually contributes to disparate outcomes for individuals charged with the same crime in the same state. Logan, supra note 8, at Ch. 65, 4 Stat See An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 112, (Apr. 30, 1790) (establishing first federal criminal provisions, which delineated approximately thirty prohibitions, including treason, murder, misprision of felony, manslaughter, robbery, piracy, maiming, forgery, larceny, and escape). 30. Then-Representative Daniel Webster, the principal author of the measure, noted that in smaller areas which were ceded to the jurisdiction of the United States, rather than creating a comprehensive penal scheme, it was sufficient to leave the residue [i.e., those crimes that were not punished by federal law] to be punished by the laws of the state in which the yard, &c. might be, and that the people would not view it as any hardship, that the great class of minor offences should continue to be punished in the same manner as they had before the cession. 1 Reg. Deb. 338 (1825).

8 84 COLUMBIA LAW REVIEW [Vol. 111:77 state courts have no jurisdiction of crimes committed on the high seas, or in places ceded to the United States. Rapes, arsons, batteries, and a host of other crimes may in these places be now committed with impunity. Suppose a conspiracy to commit treason in any of these places, by civil persons, how can the crime be punished? These are cases where the United States have an exclusive local jurisdiction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority? That Congress has power to provide for all crimes against the United States is incontestable. 31 An equally pressing reason for the ACA might have been convenience. Upon passage of the original Act in 1825, the [congressional] committee did not suppose it incumbent on them to enter into the details of a complete code of penal laws for a few hundreds of the people in the United States dock yards and arsenals. 32 By assimilating the laws of the several states, the first sessions of Congress essentially rid themselves of any responsibility to create a comprehensive federal criminal code. However, because the 1825 Act applied only to state crimes that were in effect at the time of its passage, 33 it quickly became obsolete. In an effort to keep up with rapidly expanding state criminal codes, Congress passed updated Acts in 1866, 1898, 1909, 1933, 1935, and 1940 all of which were designed almost exclusively to update the law so it would incorporate the new state laws since the Act s previous passage. 34 Finally, in 1948, Congress effectuated the current incarnation of the ACA. Concurrent with a revision of the federal criminal code, Congress removed any language about assimilating only those state laws now in force 35 and noted that the new revision authorize[d] the Federal courts to apply the same measuring stick to such offenses as is applied in the adjoining State under future changes of the state law and will make unnecessary periodic pro forma amendments... to keep abreast of challenges of local laws. 36 The 1948 code then became the basis for the current manifestation of the ACA: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any 31. United States v. Press Publ g Co., 219 U.S. 1, 12 (1911) (quoting 1 Life and Letters of Joseph Story 293 (William W. Story ed., 1851)) Reg. Deb. 338 (1825). 33. See United States v. Paul, 31 U.S. (6 Pet.) 141, 142 (1832) (finding 1825 Act to be limited to the laws of the several states in force at the time of its enactment ). 34. See United States v. Sharpnack, 355 U.S. 286, 291 (1958) (describing history of ACA). 35. Id. at Id. at 292 n.8 (quoting 18 U.S.C. 13 revision note (1952)).

9 2011] NON-ABROGATION PROVISIONS AND THE ACA 85 enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. 37 Scarcely a decade later, in 1956, the Supreme Court had the opportunity to address the constitutionality of the modern ACA in United States v. Sharpnack. 38 The defendant in that case argued that the ACA could not prospectively incorporate state law that is, it violated principles of legality for the ACA to assimilate state laws that were enacted after the enactment of the ACA itself. 39 The Court first considered whether Congress had the power to assimilate state laws at all. 40 Declining to draw a distinction between Congress making laws out of whole cloth and deciding to adopt some other body of law as its own, 41 the Court then turned to the issue of prospective incorporation: Having the power to assimilate the state laws, Congress obviously has like power to renew such assimilation annually or daily in order to keep the laws in the enclaves current with those in the States. That being so... [the ACA] is a deliberate continuing adoption by Congress for federal enclaves of such unpre-empted offenses and punishments as shall have been already put in effect by the respective States for their own government.... This procedure is a practical accommodation The ACA was thus upheld as a valid exercise of congressional authority. While the Court has long settled the question of the ACA s constitutionality, some have challenged its reasoning as suspect. In the modern era, the ACA has been hailed as promoting the values of federalism because it permits federal law to reflect local conditions, 43 while at the same time minimizing federal interference with state authority over crimes within state boundaries. 44 At least one scholar, however, claims that the Court s accommodation of the ACA is a farce. According to Professor Sarnoff, the Court missed the point by refusing to recognize the ACA for what it is: Congress delegating its own federal lawmaking power to the U.S.C. 13(a) (2006) (emphasis added) U.S. 286 (1956). 39. Id. at 287. The district judge, who was reversed by the Supreme Court, accepted the defendant s argument that assimilation of state criminal statutes subsequent to when the Act was passed constituted an unconstitutional delegation of congressional power to the states. Id. at 287 & n.2; see infra note 133 (discussing concerns about impermissible delegation by Congress). 40. Sharpnack, 355 U.S. at Id. at Id. at Logan, supra note 8, at Id. at 72.

10 86 COLUMBIA LAW REVIEW [Vol. 111:77 states. 45 A core principle of administrative law is that Congress may not delegate lawmaking power to an administrative agency without giving the agency some baseline guidance on how to exercise that authority an intelligible principle. 46 By refusing to acknowledge the existence of a delegation of federal legislative power, Sarnoff concludes, the Court s constitutional duties gave way to its practical concerns and effectively abolished the intelligible principle doctrine for delegation to states. 47 Whatever the wisdom of the Court s rationale, since Sharpnack, courts have never seriously questioned the constitutionality of the ACA. The size and scope of the federal government, and consequently federal criminal law, have increased greatly since the ACA s original passage. Due in large part to the dramatic increase in substantive federal criminal prohibitions, the ACA plays a more secondary role than it once did. However, even in its reduced role, the ACA is still an important part of the federal prosecutor s arsenal. As noted above, at the time of the ACA s adoption, [t]he federal government s assumption of a limited role in maintaining everyday law and order left primary jurisdiction over criminal matters with the states. 48 In fact, before 1874, with the federal judicial system in its formative years, Congress vested jurisdiction over several federal crimes in the state courts. 49 One thing Representative Webster and his colleagues failed to portend in crafting the ACA, however, was the massive increase in substantive federal criminal statutes. Before the Civil War, federal criminal law was largely confined to matters in which the federal government had a direct interest either common law crimes that occurred on federal land or crimes that substantially affected federal programs. 50 However, since then, federal criminal law has grown exponentially. 51 By the mid-1990s there were over 3,000 federal crimes, and many more 45. Joshua D. Sarnoff, Cooperative Federalism, the Delegation of Federal Power, and the Constitution, 39 Ariz. L. Rev. 205, 249 (1997). But see Logan, supra note 8, at (praising pragmatic quality of American federalism ). 46. Many agree that the intelligible principle requirement has become pro forma in recent years; the Court has not struck down an administrative regulation on intelligible principle grounds for several decades. See infra note 215 and accompanying text (discussing Court s repeated affirmation of congressional power of delegation). 47. Sarnoff, supra note 45, at Brickey, supra note 4, at Logan, supra note 8, at Brickey, supra note 4, at For the first 150 years of the Republic, crime was not an issue on the national political agenda. It was not until Herbert Hoover that a president even mentioned crime in his inaugural address. Sara Sun Beale, What s Law Got To Do With It? The Political, Social, Psychological, and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 Buff. Crim. L. Rev. 23, 40 (1997). 51. Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, (1996) [hereinafter Beale, Federalizing Crime] (charting historical development of federal criminal jurisdiction and detailing its dramatic expansion after Civil War). Congressional acts in the criminal sphere included

11 2011] NON-ABROGATION PROVISIONS AND THE ACA 87 have been established since then. 52 Congress has rationalized this expansion of federal criminal law by viewing it as a way to supplant state laws and allow for the prosecution of crimes that would otherwise go uncharged. 53 The most common explanation of this phenomenon is a political one: In the modern era, it is often beneficial for a politician to be viewed as tough on crime, 54 and the introduction of new criminal making assaults and other civil rights offenses federal crimes after the Civil War; federalizing financial frauds in 1872; the Mann Act federalizing prostitution offenses in 1910; federalization of dangerous drug offenses starting in 1914; and bank robberies going federal in Rory K. Little, Myths and Principles of Federalization, 46 Hastings L.J. 1029, 1064 (1995) (footnotes omitted). 52. See Beale, Federalizing Crime, supra note 51, at 44 (recognizing there were more than 3,000 federal crimes by mid-1990s but questioning veracity of any count since crimes are scattered throughout the 50 titles of the United States Code ). But cf. Little, supra note 51, at 1040 (describing halving of federal criminal caseload from 1932 to 1994). Especially problematic to many scholars is the proliferation of the malum prohibitum regulatory crime, an act or omission that is considered wrong simply because the statute deems it criminal (as opposed to a malum in se crime, which may encompass conduct that is considered evil in and of itself). See, e.g., Lawrence M. Friedman, Crime and Punishment in American History (1993) (describing regulatory crime which involved prohibition of transportation of commercial sponges from certain areas); see also Act of Aug. 15, 1914, 38 Stat. 692 (same). But see U.S. Dep t of Justice, Bureau of Justice Statistics, Office of Justice Programs, Compendium of Federal Justice Statistics, 2004, at 9 (2006) [hereinafter Federal Justice Statistics 2004], available at content/pub/pdf/cfjs04.pdf (on file with the Columbia Law Review) (showing regulatory public order offenses amounted to less than two percent of total federal prosecutions between 2003 and 2004). 53. If local enforcers could not pursue malefactors over State lines, and evil could not be contained within such lines, what could be more natural than giving the Federal Government, with its constitutional authority to regulate interstate commerce, a gap-filling role? Daniel C. Richman, The Changing Boundaries Between Federal and Local Law Enforcement, in 2 Nat l Inst. for Just., Criminal Justice 2000: Boundary Changes in Criminal Justice Organizations 81, 85 (Charles M. Friel et al. eds., 2000) [hereinafter Richman, Changing Boundaries]. 54. Many of these federal criminal laws came in response to discrete, specific national events that invaded the national consciousness. See generally Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (1997) (examining ascendance of the get-tough approach to crime and positing politicization of the crime issue triggered the expansion and reorientation of the crime control system ); Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007) (describing how Americans have built a new civil and political order structured around the problem of violent crime and detailing negative consequences of that construction); Mark Mauer, Why Are Tough on Crime Policies So Popular?, 11 Stan. L. & Pol y Rev. 9 (1999) (suggesting tough on crime movement led to changes in drug policy and major shift in sentencing philosophy and practice ). But see Sara Sun Beale, Still Tough on Crime? Prospects for Restorative Justice in the United States, 2003 Utah L. Rev. 413, 437 (describing American criminal justice as punitive and arguing goals would be better served by adopting more restorative system like other countries); Josh Gerstein, President Obama Backing Off Strict Crime Policy, Politico (Sept. 11, 2010), at (on file with the Columbia Law Review) (arguing lower crime rates, sympathetic stories of exoneration, and budgetary woes are reducing prevalence of traditional tough on crime approach).

12 88 COLUMBIA LAW REVIEW [Vol. 111:77 prohibitions is a high-profile way to achieve that end. There are other explanations as well: The national government has become increasingly powerful and plays a larger role in citizens daily lives; modern travel and technology has broken down barriers between residents of different states; and Americans tend to identify more with their national sovereign than they did in the past. 55 As the populace became accustomed to a more powerful and pervasive national government, it was increasingly amenable to federal regulation in more areas of daily life. 56 Whatever the reasons for the shift, in modern practice, if a Federal prosecutor would like to bring Federal charges against someone who has violated a State penal law, odds are that there will be a [substantive] Federal statute that can be used. 57 As a result of this new reality, the ACA has largely faded from the headlines given the expanded availability of substantive federal criminal law, federal prosecutors have lessened their reliance on state penal provisions. But just because the ACA is no longer widely used to prosecute major crimes does not mean that it does not still serve as a valuable tool for federal prosecutors. 58 One reason the ACA may be overlooked is the massive volume of cases that get resolved informally. The federal criminal code is heavily weighted in favor of felonies; it contains few misdemeanors and no traffic offenses. 59 Yet, even though Congress has not criminalized traffic offenses, in 2004, the last year for which statistics are available, about two percent of all individuals arrested for federal offenses more than 2, Friedman, supra note 52, at Friedman takes a markedly draconian view of federal influence, both in the crime-fighting realm and in general: [C]ompared to the federal government, [the states] have consistently lost power and influence. Schemes to revitalize the states, the periodic new federalisms and the like, are always dead on arrival. The big show, the main show, is now Washington, D.C.; and the big gun is the president, not the governor or the mayor. Id. at 263. For a summary of other concerns about federalization, see Little, supra note 51, at But see Logan, supra note 8, at 83 (arguing deference to state laws in assimilative provisions of federal law decreases federal influence over state law and increases state autonomy); Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. Rev. 893, 908 n.68, (2000) (arguing federalization... enhances the diversity benefits of federalism and responding to institutional criticisms of increasing federalization). 56. Friedman, supra note 52, at Richman, Changing Boundaries, supra note 53, at See, e.g., John Scalia, U.S. Dep t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal Firearm Offenders, with Preliminary Data for 1999 (2000), available at (on file with the Columbia Law Review) (noting nearly twelve percent of federal firearm defendants between 1992 and 1998 were charged with assimilated state offenses). 59. Mary C. Warner, Note, The Trials and Tribulations of Petty Offenses in the Federal Courts, 79 N.Y.U. L. Rev. 2417, 2420 (2004). It should be noted that although the United States Code does not address traffic offenses, some federal regulations incorporate state traffic laws by reference. See, e.g., 36 C.F.R. 4.2 (2009) (declaring state law governs use of vehicles within national parks and prohibiting violations of state law).

13 2011] NON-ABROGATION PROVISIONS AND THE ACA 89 people were arrested for traffic-related transgressions. 60 Moreover, although in the 2009 fiscal year, there were only 436 pending criminal cases relating to assimilated crimes, 61 hundreds of thousands of other alleged ACA violations were resolved informally. 62 Much like how other criminal and civil negotiations operate in the shadow of the substantive law, these informal resolutions operate in the shadow of potential criminal prosecution under the ACA. In sum, the ACA plays an important role in facilitating the prosecution of misdemeanor offenses that occur on federal lands Federal Justice Statistics 2004, supra note 52, at 17 tbl Exec. Office for U.S. Attorneys, U.S. Dep t of Justice, United States Attorneys Annual Statistical Report 16 chart 2.13 (2009). This number excludes the 139 assimilated crimes cases for which prosecution was declined. Id. at tbl.14. It is important to note that these statistics are not the archetype of reliability. They are self-reported; when opening a case, Assistant U.S. Attorneys are instructed to select the one or more program categories that appear to encompass the crime. Support staff then enter that information into a computerized database, which is sent to the Executive Office for United States Attorneys in Washington. 62. For petty offenses (defined as those with a maximum penalty of six months in custody), instead of taking an offender into custody, a federal officer will often do the same thing that a state officer will do: She will issue a citation. Although in some cases, the citation requires the suspected offender to appear in court to face criminal charges, with many lesser offenses, an individual can just mail in a fine and be done with the matter. See Warner, supra note 59, at (describing petty offense process); see also Fed. R. Crim. P. 58(d) (discussing procedural rules governing forfeiture of collateral). About eighty percent of federal citations do not require a mandatory court appearance. Central Violations Bureau Helps Collect Millions Each Year for Crime Victims, The Third Branch, Aug. 2003, at 7, 7. In fiscal year 2009, the U.S. government processed more than 350,000 citations and collected more than $25 million in fines, forfeitures, and fees. James C. Duff, Admin. Office of the U.S. Courts, 2009 Annual Report of the Director: Activities of the Administrative Office of the U.S. Courts 29 (2009). If the accused takes the latter route, she is never formally charged in court and the record of the incident is destroyed after five years. Warner, supra note 59, at In fact, in some cases, a driver with a penchant for speeding is better off getting pulled over inside a federal enclave than just outside it, because some federal districts do not report traffic citations to the state motor vehicles department or the driver s insurance company. See, e.g., Fed. Pub. Defender, N. Dist. of Cal., Frequently Asked Questions About Petty Offense (Minor Tickets on Federal Property), at (on file with the Columbia Law Review) (last visited Nov. 3, 2010) (describing informality of petty offense process in Northern District of California). But see U.S. Dist. Court, W. Dist. of Va., Criminal Trials of Class B Misdeamors [sic] (Petty Offenses), at gov/judges/urbanski/criminaltrialsofclassbmisdeamorspettyoffenses.htm (on file with the Columbia Law Review) (last visited Nov. 3, 2010) (standing order of one federal magistrate judge declaring traffic-related offenses reportable to state motor vehicles department). 63. As noted above, federal property represents a huge swath of the total land area in the United States. See supra note 24. Some common assimilated misdemeanors are driving under the influence, trespass, and traffic violations. A recent sampling of decisions provides insight into the types of cases that are typically brought under the ACA. See, e.g., United States v. Chatman, 351 Fed. Appx. 740 (3d Cir. 2009) (charging trespass); United States v. Somerset, Nos. 3:03-po-002, 3:09-cv-017, 2009 WL (S.D. Ohio Nov. 19, 2009) (telephone harassment); Jenkins v. United States, No. 1:09cr341, 2009 WL (E.D. Va. Sept. 28, 2009) (speeding); United States v. Montjoy, No. 3:08-Po-101, 2009 WL

14 90 COLUMBIA LAW REVIEW [Vol. 111:77 B. The Enactment of Congress Requirement As noted above, the ACA is the equivalent of a default rule it is activated only when Congress has not otherwise criminalized the conduct at issue. Since its original enactment, criminal defendants convicted under the ACA have regularly litigated the enactment of Congress requirement, claiming that their convictions should be set aside based on an erroneous assimilation of a state criminal statute. But courts have struggled with how to determine when an ACA prosecution is precluded by a previous enactment of Congress. Most of the ensuing jurisprudence has centered around two tests: the precise acts test and the more modern two-part test articulated by the Supreme Court in Lewis v. United States. 64 A state crime may only be assimilated under the ACA if there is no enactment of Congress that punishes the same conduct. 65 In other (S.D. Ohio Apr. 6, 2009) (drunk driving); United States v. Langford, No. CR M, 2009 WL (W.D. Okla. Feb. 27, 2009) (cockfighting); United States v. Harrison, 552 F. Supp. 2d 1108 (D. Haw. 2008) (threats against public servant); United States v. Codrington, No. 07 MJ 118(CLP), 2008 WL (E.D.N.Y. May 1, 2008) (attempted petit larceny); United States v. Saffan, No CR, 2007 WL (S.D. Fla. Dec. 4, 2007) (illegal taking of fish); United States v. Hazlewood, No. SA-06-CR- 160-XR, 2007 WL (W.D. Tex. June 20, 2007) (use of profane language inciting breach of the peace); United States v. Seitles, No. 2:04-CV KJD-PAL, 2006 WL (D. Nev. May 12, 2006) (parking motor home without valid permit). But see Logan, supra note 8, at 103 ( [W]ith regard to the ACA... the time might be at hand to rethink the law. While it continues to serve a variety of practical purposes, it nevertheless endures as an anachronism in a time of dramatically expanded federal willingness and capacity to enact criminal laws. ) U.S. 155 (1998). 65. The language of the ACA limits prosecution to any act or omission, which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State... in which such place is situated. 18 U.S.C. 13(a) (2006) (emphasis added). This language has varied over the years the original incarnation of the ACA referred to the punishment of which offense is not specially provided for by any law of the United States. Federal Crimes Act of 1825, ch. 65, 4 Stat In 1909, Congress, worried that using the word offense would be too narrow, transitioned to the standard of any act or thing which is not made penal by any laws of Congress. Williams v. United States, 327 U.S. 711, (1946). Interestingly, the portion of the 1825 Act dealing with assimilation was interpreted to apply only to state crimes that were in existence at the time of the Act s passage, and only in federal enclaves that existed at the time of the Act s passage. See United States v. Paul, 31 U.S. (6 Pet.) 141, 142 (1832) (disallowing assimilation where burglary was made penal by state statute after passage of original ACA); United States v. Barney, 24 F. Cas. 1011, 1014 (C.C.S.D.N.Y. 1866) (No. 14,524) (refusing to extend Act to states that were not in Union at time of Act s enactment because there were no laws of the state in force ). The jurisdictional component was later remedied by the Act of April 5, 1866, which provided that the assimilative provisions would apply any place which has been, or shall hereafter, be ceded. Ch. 24, 2, 14 Stat. 13 (1866). It was not until 1940 that Congress removed any date from the text of the statute, which was intended to authorize the Federal courts to apply the same measuring stick to such offenses as is applied in the adjoining State under future changes of the State law and [to] make unnecessary periodic pro forma amendments... to keep abreast of changes of local laws. 18 U.S.C. 13 revision note (2006).

15 2011] NON-ABROGATION PROVISIONS AND THE ACA 91 words, if a federal law already prohibits the defendant s bad acts, he or she cannot be charged with the state crime as assimilated under the ACA, but instead, must be prosecuted under the substantive federal law. There are a number of reasons why a defendant might want to avoid being charged under state law: One common example is that in Driving Under the Influence (DUI) cases, many states impose a harsher penalty for habitual offenders. 66 Since the sentencing provisions of the ACA allow for the imposition of penalties similar to that faced by someone convicted of the state crime, 67 a defendant who is convicted under a state habitual offender DUI statute, for instance, may face higher penalties than if she were convicted under a National Park Service regulation. 68 Additionally, at least when the federal crime at issue is an agency regulation, Congress has limited the power of agency administrators to criminalize conduct in many cases, violation of agency regulations is only penalized as a Class B misdemeanor, which carries a maximum penalty of six months imprisonment. 69 State legislatures, however, are free of such constraints, and thus may set more stringent maximum penalties. 70 Finally, in certain cases, a particular defense may be available to the defendant under federal law and not under state law. 71 The Supreme Court 66. For example, compare Cal. Veh. Code 23536(a) (West 2000) (setting minimum term of imprisonment for first time DUI violation at ninety-six hours), with id (a) (prescribing minimum penalty of 180 days in prison for fourth DUI conviction in past ten years). New York provides for similar penalties. See N.Y. Veh. & Traf. Law 1193(1)(a) (McKinney 1996) (punishing first DUI as infraction with maximum term of imprisonment of fifteen days, while allowing for subsequent offenses to be punished as misdemeanors with longer maximum jail terms). 67. See 18 U.S.C. 13(a) (noting such offender shall be guilty of a like offense and subject to a like punishment ). See generally Frank C. Bozeman, Comment, Federal Assimilative Crimes Act: How Much State Law?, 16 Wash. & Lee L. Rev. 62, 69 (1959) (discussing jurisprudence that required similar punishment for assimilated crimes and state offenses). 68. See, e.g., 36 C.F.R. 4.23(a) (2008) (prohibiting operation of motor vehicle while under influence of alcohol). Violation of such a regulation is a Class B Misdemeanor, carrying a maximum penalty of six months in prison and a fine. See id. 1.3(a) (punishing violation of regulations in chapter with fine as allowed by law and maximum of six months imprisonment). There is no analogous habitual offender regulation within the National Park Service regulations. 69. See, e.g., id. 1.3(a) (prescribing maximum punishment of six months imprisonment for violation of National Park Service regulations). 70. As noted above, the ACA also requires a like punishment, so a defendant convicted in federal court for a violation of state law would still be subject to the maximum punishment under state law. See supra note 67 and accompanying text. 71. See, e.g., United States v. Waites, 198 F.3d 1123, 1127 (9th Cir. 2000) (noting defendant s argument that had he been prosecuted under the federal regulations, he could have asserted a defense not available under an indictment based on the assimilated state statute ). In that case, which is discussed below, if the defendant had been charged under a federal regulation that prohibited trespass rather than the assimilated state statute, he could have asserted that the postmaster had failed to post the regulations in a conspicuous place on the property, as required by the applicable federal regulation; he had no such defense to the assimilated state charges.

16 92 COLUMBIA LAW REVIEW [Vol. 111:77 has articulated two primary tests in analyzing the applicability of the enactment of Congress clause: the precise acts test, and the superseding two-step test in Lewis. 1. The Precise Acts Test. It is widely recognized that the methods that courts use to interpret statutes are unpredictable and inconsistent. 72 This maxim is no less true in the context of the ACA. The Supreme Court first addressed the extent of the enactment of Congress requirement in Williams v. United States. 73 In Williams, the defendant engaged in sexual intercourse with a seventeen-year-old girl on an Indian reservation located within the state of Arizona. 74 At the time of the alleged act, one of the elements of the federal rape statute was that the sex be forceful and nonconsensual. 75 The government charged the defendant with willfully, unlawfully and feloniously ravish[ing] and carnally know[ing]... an Indian under the age of eighteen years. 76 Because the sex between the victim and the defendant was apparently consensual, the defendant was not guilty of the federal crime of rape. On direct appeal, the Ninth Circuit construed the indictment as charging the defendant with violating the Arizona rape statute, as assimilated by the ACA, which prohibited even consensual sex with a female under the age of eighteen. 77 The de- 72. See, e.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1863, 1910 (2008) (arguing courts should give stronger stare decisis effect to doctrines of statutory interpretation than to doctrines of substantive law). Foster and others have argued that the courts should be more consistent in their application of statutory interpretation methods, id. at 1910, but for now, the status quo remains a hodgepodge. Indeed, the perceptions of scholars several decades ago still ring true: The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); see also Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Cannons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, (1950) (calling statutory interpretation a diplomatic tongue and discussing various canons of construction in fencing terms). See generally Yule Kim, Cong. Research Serv., Statutory Interpretation: General Principles and Recent Trends 1 (2008) (admitting there is overlap and inconsistency among rules of interpretation and canons of statutory construction) U.S. 711 (1946). 74. Id. at Id. The federal rape statute did not define particular elements, but simply stated that [w]hoever shall commit the crime of rape shall suffer death. Id. at 713 n.4 (internal quotation marks omitted). The courts have imputed the common law definition of rape to the statute. Id. at 715; Oliver v. United States, 230 F. 971, (9th Cir. 1916) (holding where rape was not defined by Congress, common law definition could be applied). 76. Williams v. United States, 148 F.2d 960, 961 (9th Cir. 1945) (internal quotation marks omitted), rev d, 327 U.S. 711 (1946). 77. The Ninth Circuit noted that although the prosecutor had written a particular statute 18 U.S.C. 548 in the margins of the charging document, that statute did not apply because it only criminalized rape by Indians, and the defendant was a white man. Id. Nonetheless, the court reasoned that the specific statute the prosecutor had in mind was irrelevant if the acts he charged in the indictment did in fact constitute an offense under

17 2011] NON-ABROGATION PROVISIONS AND THE ACA 93 fendant argued that assimilation of the Arizona statute was improper because there existed the federal crime of having carnal knowledge of a girl (today s statutory rape), which governed his actions. That federal crime, however, require[d] proof that [the girl] was under 16 years of age at the time of the offense. 78 The Supreme Court, noting that the extra acts that were criminalized by the state statutory rape law engaging in intercourse with a consenting female between the ages of sixteen and eighteen were also prohibited by the federal crimes of adultery and fornication, vacated the conviction. 79 Because the state of Arizona lacked jurisdiction over the federal enclave, the Court s holding meant that Williams could not be prosecuted on the more serious rape charge in either federal or state court. The Williams Court, studying the legislative history of the ACA and its amendments, provided the first guidance on the enactment of Congress standard, establishing the so-called precise acts test. 80 If the precise acts upon which the conviction depends have been made penal by the laws of Congress, prosecutors would not be able to make use of the ACA. 81 In other words, even if Congress declined to criminalize the exact same conduct, as long as the acts or omissions in question were covered by a congressional enactment, the ACA was not applicable. This literal reading of the statute presumably made it more difficult to charge a defendant with an assimilated crime. Yet, although Williams primarily considered whether the generic type of act was covered by congressional enactment, 82 lower courts subsequently expanded the test. Several circuits allowed prosecutors to invoke the ACA where Congress ha[d] broadly addressed a variety of misconduct, yet a more specific state law afford[ed] federal prosecutors a strategic advantage. 83 In United States v. Fesler, the Fifth Circuit allowed an ACA prosecution assimilating a Texas child abuse statute where the Arizona law that could be assimilated under the ACA. Id. (citing Williams v. United States, 168 U.S. 382, 389 (1897)). The Arizona statute provided, in part: Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator... [w]here the female is under the age of eighteen [18] years.... Rape is punishable by imprisonment in the state prison for life or for any term of years not less than five [5]. Williams, 327 U.S. at 716 n.11 (quoting Ariz. Code (1939)). 78. Williams, 327 U.S. at 715 (emphasis added). 79. Id. at , Id. at Id. (emphasis added). 82. Sharon Womack Doty, Note, United States v. Renville: The Unsettling Condition of the Settled Law Applying the Assimilated Crimes Act to Indians, 16 Am. Indian L. Rev. 247, 256 (1991). 83. See Logan, supra note 8, at 72 & n.44 (collecting cases); Doty, supra note 82, at 256 ( Since Williams, however, a number of cases have attempted to invoke the ACA [to broaden a federal definition]. Courts have focused on specific kinds of offenses governed by federal statute. ).

18 94 COLUMBIA LAW REVIEW [Vol. 111:77 defendant was also charged with federal involuntary manslaughter. 84 In contrast to the federal manslaughter statute, the court reasoned, the Texas law required the victim to be under the age of fourteen and did not require the death of a human being. 85 As such, the defendant could be prosecuted for both crimes. 86 In United States v. Smith, 87 the Ninth Circuit was confronted with the case of a male prisoner who had sodomized another male prisoner. The court held that prosecutors could assimilate a state rape statute because the federal rape statute had been interpreted to cover only the common law definition of rape. 88 From a prosecutorial perspective, courts have been especially forgiving in their interpretation of the federal assault statute, 89 ignoring the Williams Court s focus on congressional intent to punish generic types of crimes. 90 In Fields v. United States, the Second Circuit, commenting that [t]he [state] statute fits the facts of this case more precisely, upheld the ACA s assimilation of a state battery statute, despite the existence of a federal prohibition on assault. 91 In United States v. Griffith, Mr. Griffith shot a fellow hunter while trespassing on a military base. 92 The Sixth Circuit held that the government could charge the defendant with a violation of the state reckless assault statute because the federal assault statute contained an intent requirement. 93 The Second Circuit upheld a district court s decision that the government could assimilate a New York disorderly conduct statute against a group of protestors who blocked entrances to a federal courthouse, even though a federal law prohibited picketing a courthouse with intent to influence a participant in a judicial proceeding. 94 The Tenth Circuit found that because New Mexico s prohibition on aggravated assault did not require a showing of specific intent, it could be assimilated in spite of the existence of a federal aggravated assault statute F.2d 384, 386 (5th Cir. 1986). 85. Id. at Id F.2d 988 (9th Cir. 1978). 88. Id. at 991. The common law definition of rape is carnal knowledge of a female by force or threat of force. Id. at 990 (citing Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970)). As such, male-on-male prison rape, as in this case, was not prohibited under the federal statute. See also supra note 75 (discussing courts imputation of common-law definition of rape to federal prohibition). The Washington state statute specifically covered forcible sexual intercourse between any two persons of the opposite sex or of the same sex. Smith, 574 F.2d at 989 nn U.S.C. 113 (2006). 90. Doty, supra note 82, at F.2d 205, (2d Cir.), cert. denied, 403 U.S. 907 (1971) F.2d 421, 422 (6th Cir. 1988). 93. Id. at 424. The Griffith court also provides a very thoughtful categorization of the types of cases in which an overlap or conflict between state and federal law is claimed to bar a prosecution under the ACA. See id. at United States v. Jones, 244 F. Supp. 181, & n.4 (S.D.N.Y.), aff d, 365 F.2d 675 (2d Cir. 1965). 95. United States v. Johnson, 967 F.2d 1431, 1436 (10th Cir. 1992).

19 2011] NON-ABROGATION PROVISIONS AND THE ACA 95 But there were other cases where the courts took a different approach: A number of courts, relying on the same precise acts test articulated by the Williams Court, refused to allow the assimilation of state crimes. 96 At least one court rejected the precise acts analysis altogether: In United States v. Butler, the Eighth Circuit interpreted the Williams analysis as being concerned not with whether the precise acts had been made penal, but with the discernment of the intent of Congress to punish the generic conduct in question. 97 In Butler, the defendant, a Native American, was charged with a violation of the federal felon-in-possession statute and also with a violation of the state felon-in-possession statute, as assimilated by the ACA. 98 The federal statute prescribed the additional requirement that the firearm must have been possessed in commerce or affecting commerce. 99 The Butler court rejected the notion that additional elements of a federal crime serve to make the state law applicable and the federal law inapplicable under the ACA. 100 Relying on both the plain meaning of the ACA and Congress s purpose in enacting it, the court vacated the defendant s conviction. 101 As one commentator has noted, the only common thread among lower-court decisions after Williams, whether they ruled against or in favor of the defendant, appeared to be an ad hoc attempt to discern the generic nature of the actions prohibited by Congress and relate that to the specific acts of the defendant. 102 As it evolved, then, the precise acts test ended up being rather imprecise. 2. Current Doctrine: The Lewis Two-Step. More than a half century after it considered Williams, in an effort to clarify its position on the applicability of the ACA, the Supreme Court granted certiorari in Lewis v. United States to decide the meaning of the words any enactment of Congress. 103 In Lewis, the defendant beat her four-year-old daughter to death on the grounds of an Army base. 104 She was convicted of violating the Louisiana first degree murder statute, which specifically criminalized the killing of a child under the age of twelve, as assimilated by the ACA. She challenged that conviction, arguing that her actions were criminal- 96. See, e.g., United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973) (holding precise acts to which [defendant] pleaded guilty were made penal by federal assault statute, and therefore ACA did not apply); cf. United States v. Big Crow, 523 F.2d 955, 958 n.4 (8th Cir. 1975) (commenting that the government may not... proceed under the state statute when the precise act prohibited by the state statute is defined and prohibited by a federal statute (quoting Fields v. United States, 438 F.2d 205, 207 (2d Cir. 1971))) F.2d 730, 735 (8th Cir. 1976) (emphasis omitted). 98. Id. at Id. at Id. at 737. This approach is similar to the one that the Supreme Court would later adopt in Lewis, discussed infra at Part I.B Butler, 541 F.2d at Doty, supra note 82, at U.S. 155, 159 (1998); see also Lewis v. United States, 520 U.S. 1226, 1226 (1997) (amending grant of certiorari and limiting review to question of ACA) Lewis, 523 U.S. at 158.

20 96 COLUMBIA LAW REVIEW [Vol. 111:77 ized by the federal second degree murder statute, and therefore, assimilation of Louisiana law was improper. 105 The Court first concluded that any enactment of Congress was not to be interpreted literally. 106 But it also rejected the notion that prosecutors were precluded from utilizing the ACA only where the elements of both crimes were identical. 107 Recognizing that [t]here are too many different state and federal criminal laws, applicable in too many different kinds of circumstances, bearing too many different relations to other laws, to common-law tradition, and to each other, the Court declined to establish a bright-line rule. 108 Instead, it attempted to reach an accommodation between the two extremes. While recognizing that the text of the statute does in fact refer to any enactment of Congress, the Court found that the ACA s essential purpose was complementary Congress intended it to fill [the] gaps left by federal criminal law on federal enclaves. 109 On the basis of the ACA s language and its gap-filling purpose taken together, 110 the Court set out a new two-part test for application of the Act: (1) Is the defendant s act or omission... made punishable by any enactment of Congress? 111 and, in what would ultimately prove to be the more vexing part of its analysis, if so, (2) [d]oes applicable federal law indicate an intent to punish conduct such as the defendant s to the exclusion of the particular state statute at issue? 112 Applying its new test to several hypothetical situations, the Court commented on three specific instances where it envisioned a state statute not being assimilated: (1) where both state and federal statutes seek to punish approximately the same wrongful behavior; (2) where... differences among elements of the crimes reflect jurisdictional, or other technical, considerations, or where differences amount only to those of name, definitional language, or punishment; and (3) ordinarily, there will be no gap for the [ACA] to fill where a set of federal enactments taken together make criminal a single form of wrongful behavior while distin Id. At the time, the maximum penalty for first degree murder in Louisiana was a death sentence, while a federal second degree murder conviction carried only the risk of a life sentence with the possibility of parole. Id. at Id. at Id. at ( The Government apparently interprets this test to mean that, with limited exceptions, the ACA would assimilate a state law so long as that state law defines a crime in terms of at least one element that does not appear in the relevant federal enactment. ). Justice Kennedy espoused this view in dissent. See infra note 117 and accompanying text (discussing Kennedy s adoption of government s precise elements test) Lewis, 523 U.S. at Id. at Id. at Id. The emphasis, in the original opinion, indicates that the Court thought it would be relatively easy to satisfy this first prong. In some sense, this part of the test may be interpreted as the same literal test advocated by Williams Id.