LiveBlogging a Law Review Article- Original Crime Update

December 30th, 2009

In keeping with my ongoing attempt to LiveBlog my articles, I just wanted to give you an update on my work on Original Crime. See my previous posts here for background.

In short, I’m trying to figure out when the Feds started to criminalize activities that had no actual bearing on acts crossing state lines, or affecting federal interests.

My research has focused on June 25, 1948, ch. 645, 62 Stat. 683, which served as the codification of Title 18 of the U.S. Code which governs all criminal law. Thanks to Corey C. for helping me track this down. If you are interested, Lexis has it in PDF form.

Although the statute defines “interstate commerce” as “The term “interstate commerce”, as used in this title, includes com- merce between one State, Territory, Possession, or the District of
Columbia and another State, Territory, Possession, or the District of Columbia” it also extends the act to crimes that are not interstate commerce.

In this act, all crimes that focus solely on wholly intrastate activities include the ¬†language that the act must be “Within the special maritime and territorial jurisdiction of the United States.”

Crimes that actually deal with acts crossing state lines (the Mann Act for example), reference interstate commerce, and do not include this provision. Crimes that do not cross state lines, do not reference interstate commerce, but do include this provision.

The Phrase “Special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. 7.

But this definition doesn’t fully explain the statute. It explains interstate crimes (such as kidnapping) and crimes in federal areas (international waters or D.C.). But what about a manslaughter committed solely in one state? And further, crimes that cross state lines (such as kidnapping) do not make reference to the special maritime and territorial jurisdiction.

I have an inkling that “maritime and territorial jurisdiction” refers to interstate commerce, in some backhanded way. But I’m not sure yet. There are lots of cases interpreting this, and I am trying to dig up the legislative history from 1948 to get some idea what’s going on. But this may be very useful.

When did Congress create this statutory sleight of hand? That is the answer to original crime.

Stay tuned.