Get the federal government out of policing crime

Kevin Ring President, Families Against Mandatory Minimums
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In recent years, conservative presidential candidates have preached the gospel of federalism — the idea that, for constitutional and practical reasons, most federal responsibilities should be returned to the states.

Policing crime is one responsibility that the Constitution plainly leaves to the states. Yet conservative presidential candidates never call for getting the federal government out of state and local crime control. That’s too bad because overlapping state and federal anti-crime efforts can produce some horrible injustices, including the prosecution and sentencing of Indiana cop Eric Rinehart.

To understand how badly Rinehart was jammed, consider the context provided by this recent Christmas picture staged by 51-year-old actor Doug Hutchison of “The Green Mile” and “Lost” fame and his 17-year-old wife, Courtney Stodden.

These lovebirds married earlier this year, when the modest Ms. Stodden was just 16. Before Nevada would issue a marriage license, the state required that the teenage model and singer obtain a permission slip from one of her parents. Her mom consented. Since their May wedding, Hutchison and his barely clad wife have been groping each other in various public places, to the delight of the paparazzi and, presumably, Ms. Stodden’s publicist.

Though many will find their relationship distasteful, few would argue it should be criminal. According to Nevada law, Ms. Stodden was old enough to consent to sexual relations and, when she decided to marry, she enlisted her mother to gain the necessary permission. Some might see in their union the triumph of a woman’s autonomy; others will lament the culture’s continued sexualization of young women. Alas, what happens between Hutchison and Stodden is no longer the government’s business … or is it?

In 2006 Eric Rinehart, who at the time was a 34-year-old Middletown, Indiana police officer, found himself in a situation similar to Hutchison’s. Rinehart was going through a divorce when he developed sexual relationships with not one, but two young women — one was 16, the other was 17. Inappropriate? Wildly. Illegal? No. The age of consent in Indiana is 16. Further, if either of the girls’ mothers had been as — how shall we say it, “liberated” — as Ms. Stodden’s mother, she could have consented under Indiana law to the marriage of her daughter and Mr. Rinehart.

Unfortunately for Mr. Rinehart, conducting a legal relationship under state law was not enough to keep him out of jail. The FBI learned that dirty pictures had been taken. One of Mr. Rinehart’s girlfriends had taken a few X-rated pictures of herself with his cell phone, which he later downloaded onto his computer. Inspired by her creativity, he took a few additional pictures of her and his other girlfriend and kept them on his hard drive. He never shared these photo files with anyone, but by downloading them onto his computer, he violated a federal law that forbids adults from possessing child pornography. Under federal law, anyone under 18 is a child.

It did not matter that the “child” was his girlfriend or that she had consented to the photos. It did not matter that he did not share the pictures nor had any intention of doing so. Nor, for purposes of the federal law, did it matter that state law permitted him to have sex with his girlfriend or even marry her. The FBI, tipped off about the relationship, took Rinehart’s computer, found the pictures and presented them to a grand jury.

With prosecutors threatening charges that might have cost him a 25-year sentence if he had lost at trial, Mr. Rinehart agreed to plead guilty and serve the mandatory minimum set by Congress: 15 years in federal prison. When he finishes his term, he will be forced to register as a sex offender for the rest of his life.

Of all the possible sanctions for his admittedly poor behavior, his sentence seems the most unjust. Yet it was compelled by a federal government that sees every problem as its business and by federal prosecutors who feel empowered to stretch the law as much as the courts will allow. Sentences like those imposed on Mr. Rinehart breed contempt for the system. He will spend more than a decade of his life in prison while the likes of Mr. Hutchison and Ms. Stodden are featured in tabloid magazines at the supermarket checkout.

The least Congress can do is change its pornography law to make the age of consent dependent on state law. That tiny nod to federalism — as well as the abolition of stupid mandatory minimum sentences — would reflect a humility that might serve it well as its poll numbers dip to record lows.

Kevin Ring is a freelance writer in Kensington, Maryland. He previously served on Capitol Hill as counsel to then-Senator John Ashcroft; executive director of the Republican Study Committee; and legislative director to former Congressman John Doolittle.