Federal Criminal Law Enforcement
FEDERAL CRIMINAL LAW ENFORCEMENT
Cases investigated and prosecuted by the federal criminal enforcement authorities often capture national attention. Terrorist bombings, official corruption, insider securities trading, organized crime enterprises, international drug conspiracies—all have been targeted by the "Feds," as have bank robberies, environmental crimes, illegal immigration, and foreign espionage, to name just a few. For all the attention it gets, however, what is most surprising about the federal enforcement apparatus is its small size, at least when compared to the network of state and local enforcement agencies, which have primary responsibility for patrolling the streets and pursue most of the crimes that happen on or off them. In 1996, for example, only 74,493 federal officers were authorized to carry guns and make arrests, against 663,535 full-time sworn state and local officers (36,813 in New York City alone).
While the fragmentation of state and local law enforcement can easily be explained by the nature of state and local government in the United States, what some might find surprising is the extent of fragmentation within the supposedly unitary federal system. As of 1996, twenty-seven federal agencies each had at least one hundred law enforcement officers, and fourteen of those had five hundred or more. The four biggest agencies are the Immigration and Naturalization Service (INS) (12,403 officers with arrest and firearms authority, including Border Patrol agents, immigration inspectors, criminal agents, and detention officers), responsible for locating and apprehending illegal aliens; the Federal Bureau of Prisons (11,329 officers), which maintains order in federal correctional facilities; the U.S. Customs Service (9,749 officers), which, in addition to its border inspection duties, is charged with investigating smuggling and money laundering cases; and the Federal Bureau of Investigation (F.B.I.) (10,389 officers, mostly special agents), whose broad portfolio includes terrorism, white-collar crime, bank robberies, organized crime, espionage, narcotics trafficking, kidnapping, official corruption, and health-care fraud. Some of the smaller federal agencies are the Drug Enforcement Administration (DEA) (2,946 officers); the U.S. Secret Service (3,185 agents and protective officers), which investigates credit card and computer fraud and counterfeiting cases, in addition to its protective responsibilities; the Bureau of Alcohol, Tobacco, and Firearms (ATF) (1,869 officers), whose authority extends to include arson and explosives; the Internal Revenue Service (IRS) (3,784 officers); the U.S. Postal Inspection Service (3,576 officers); and the U.S. Marshals Service (2,650 officers).
These investigative agencies are not even housed in a single executive department. INS, F.B.I., DEA and the U.S. Marshals Service (which, among other things, tracks fugitives, transports prisoners prior to sentence, and protects witnesses and federal court personnel) are part of the Department of Justice. The Secret Service, ATF, the Customs Service, and IRS report to the Secretary of the Treasury. Postal Inspectors—whose jurisdiction over mail fraud sweeps in a broad array of criminal activity—are part of the U.S. Postal Service. In addition, criminal investigations are conducted by personnel within various regulatory agencies, including the Securities & Exchange Commission, the Environmental Protection Agency, the Food and Drug Administration, and such executive departments as Agriculture (which, among other things, investigates food stamp fraud), Labor (concerned with labor racketeering), and Interior (which includes the U.S. Park Police).
Prosecuting authority is somewhat less fragmented than investigatory authority in the federal system. As a formal matter—except in extraordinary cases involving an independent counsel—all federal prosecutors report to the Attorney General of the United States. Yet there is still a considerable degree of decentralization. The huge majority of federal criminal cases are brought not by the litigating units of the Justice Department like the Criminal, Antitrust, and Civil Rights Divisions, which are under the direct control of assistant attorney generals in Washington, D.C., but by the ninety-four U.S. attorneys' offices, each headed by a presidential appointee responsible only to the Attorney General and the Deputy Attorney General. U.S. attorneys, like assistant attorney generals, generally change with presidential administrations, but they preside over offices that, like the Department's litigating units, are generally staffed by lawyers whose tenure is not based on political allegiances. Although the freedom of the U.S. attorneys' offices is far from absolute, and there are many mechanisms through which "Main Justice" (as the Washington bureaucracy is often called) can assert authority over a recalcitrant office, U.S. attorneys have a long tradition of independence from Washington. This independence is in part rooted in history, since the U.S. attorneys' offices were prosecuting cases before the Justice Department was even created (in 1870), but it also reflects a desire by the Department, and perhaps even more, by Congress, that prosecutorial discretion—even with respect to nationally applicable laws—be exercised by those most attuned to the needs and values of the diverse communities they serve.
This relative decentralization affects the types of criminal cases that are prosecuted in federal court. Even when the Attorney General of the United States announces a national initiative for the prosecution of particular criminal activity, the degree of compliance by U.S. attorneys' offices across the country will vary considerably, and will often be a function of local priorities. Perhaps the most important force in the direction of national priorities comes from the enforcement agencies, which are as a whole quite centralized, and which are primarily responsible for initiating the cases that the U.S. attorneys' offices pursue.
The mix of cases prosecuted in federal court arises out of these diverse influences. And the discretion exercised by enforcement agencies, in the first instance, and by federal prosecutors thereafter, is enormous. Because the scope of federal criminal jurisdiction is so great, and the size of the federal enforcement apparatus so small in comparison, federal enforcers have a great advantage over their state and local counterparts: even as their resource limitations largely free them from being held responsible for policing any particular "beat," they can still be confident that they will have a criminal statute to fit any antisocial conduct they choose to pursue. Some kinds of cases must be brought federally, either because state agencies legally cannot proceed, or because the federal government has primary jurisdiction in the matter. This category includes federal program frauds and intrusions on federal proprietary or security interests. Outside this category, however, are a broad array of potential cases in which federal and state authorities have overlapping interests, and where federal involvement will generally occur only when federal enforcers have made a strategic decision to deploy their resources. In recent years, much of this deployment has occurred in the narcotics area, at least when judged by the number of cases filed. Of the 39,291 cases filed by U.S. attorneys' offices in fiscal 1997, for example, 11,935 involved drug offenses, and 6,248 involved "violent crime" (there is some overlap between these categories); the remainder, for the most part, involved fraud, theft, corruption, immigration, and regulatory offenses.
Sources of structural fragmentation: history and politics
The number and often overlapping responsibilities of the federal enforcement agencies reflect a history of ad hoc responses to particular enforcement problems against a backdrop of expanding federal jurisdiction. Not surprisingly, the first agencies to develop were those meeting the basic needs of a minimalist national government. Indeed, the roots of the Postal Inspection Service date back to before the framing of the Constitution, when Postmaster General Benjamin Franklin found a need to ensure the integrity of the mails. In 1789 Congress created the Revenue Cutter Service of the U.S. Customs office, to deal with smuggling, and the U.S. Marshals Service, to ride circuit with the Supreme Court and perform other duties. The Secret Service was created in 1865 to fight counterfeiting, and later, in 1901, after the assassination of President William McKinley, was given protective duties. In 1908, a small Bureau of Investigation was created within the Department of Justice, to reduce that department's reliance on Secret Service agents. By 1924 this unit had received a new chief, J. Edgar Hoover, and in 1935 became the Federal Bureau of Investigation, with a growing number of responsibilities, from kidnappings to "subversion" and counterespionage.
As the taxation jurisdiction of the Treasury Department grew, so too did that department's readiness to create units to carry out licensing and taxation enforcement functions. In 1919, the Bureau of Internal Revenue (forerunner of the IRS) formed a criminal investigation unit to investigate criminal tax violation. That same year also saw the onset of Prohibition, which led, in 1920, to the creation of a Prohibition Unit within Treasury, charged with enforcing the nationwide ban on the "manufacture, sale, or transportation of intoxicating liquors for beverage purposes." In 1932, a year before Prohibition's repeal, these enforcement functions were transferred to the Justice Department, but Treasury continued to have tax and regulatory responsibilities in this area. Eventually, in 1972, alcohol, tobacco, and firearm enforcement functions were removed from the IRS and given to the newly created ATF, whose mission was later expanded to include arson investigations. In 1973 certain Treasury Department functions in the narcotics enforcement area were transferred to the Drug Enforcement Administration, newly created within the Justice Department. The DEA also inherited the functions of the Justice Department's Bureau of Narcotics and Dangerous Drugs. In 1982, with the intensification of the federal "war on drugs," the F.B.I. was given concurrent jurisdiction (with DEA) over narcotics violations in the United States.
The fragmented structure of the federal enforcement apparatus cannot simply be attributed to historical accident and bureaucratic rivalries, however. It reflects Americans' deep-seated suspicion of concentrated government power, especially in the criminal justice area. There never has been a single "national police force," and there likely never will be. Even J. Edgar Hoover, perhaps the most bureaucratically aggressive director of the F.B.I. (the only agency that conceivably could assume this role), was always careful to disclaim any ambition on this score. The division of responsibilities among agencies also promotes the development of expertise and specialized resources.
Agency fragmentation serves other purposes as well, such as allowing the President and/or Congress, or others, to exercise more control in certain enforcement areas. Efforts in the 1980s and early 1990s to end the overlap in agency responsibilities by merging the DEA into the F.B.I. were defeated in part because legislators wanted to ensure the continued existence of an agency committed solely to narcotics enforcement that was unable to shift resources to other areas. The efforts of gun control opponents to eliminate the ATF came to a sudden (albeit perhaps temporary) halt in 1982 when the lobbyists learned that firearms enforcement functions and personnel were to be transferred from the politically weak ATF to the Secret Service, which, because of its counterfeiting and protective functions, would have been far less vulnerable to political pressure.
When two or more units have overlapping spheres of responsibility, competition between them can spur each to greater innovation and superior performance. That at least is the lesson of market theory. And there is some validity to the theory, when applied to the federal enforcement establishment, where competition among agencies can enhance performance and group esprit, and can ensure that no one agency controls policymaking in a particular operational sphere. If necessary, one agency can even be used to investigate alleged misconduct by another.
With these benefits can come severe disadvantages, however. Competition between agencies can be wasteful if each strives simply to look better in the appropriations process. The failure to share information can seriously impede the prosecution of complex criminal activity that is not fully understood by any one agency. And the loss can be even greater if, in the absence of coordination, one agency actually disrupts the operations of another by, say, targeting someone who is an active informant for another agency. One of the critical challenges facing the federal enforcement establishment is thus to keep the benefits of fragmentation while minimizing its costs.
Some efforts to coordinate enforcement activity occur in Washington, through personal and institutionalized relationships between agency leaders and their political superiors. Other efforts occur in the field, through interagency contacts and, increasingly, through the establishment of task forces. Between 1966 and 1990, organized crime "strike forces" were established in fourteen major cities. These units—comprised of representatives of eleven investigative agencies at one point—and prosecutors reporting to the Organized Crime and Racketeering Section in Washington targeted "traditional" organized crime (La Cosa Nostra) as well as some nontraditional criminal enterprises. Although Attorney General Richard Thornburgh merged the strike forces into the local U.S. attorneys' offices in 1990, in order to end occasional turf battles between prosecutors reporting to Washington and those reporting to U.S. attorneys, these units continue to operate within the new framework. In 1982 the task force model was extended to the narcotics area with the establishment of thirteen regional units, the Organized Crime Drug Enforcement Task Forces. These units, formed to target high-level trafficking, include personnel from the DEA, F.B.I., IRS, INS, U.S. Marshals, Customs Service, and Coast Guard.
Another way in which interagency coordination is promoted in the field is through the actions of the U.S. attorneys' offices. Although federal agents sometimes seek legal support—for example, search warrant applications—from state and local prosecuting offices, and those offices will sometimes seek indictments in cases that have been investigated by federal agents, federal agents will generally go the local U.S. attorney's office first for search warrants, grand jury subpoenas, electronic surveillance applications, and other such legal assistance, as well as for indictments. A U.S. attorney's office will therefore find itself at the center of most federal enforcement activity in its district, and can ensure, at the very least, that two different agencies are not on a collision course. It may even be able to promote affirmative cooperation. Within the Justice Department, only the Attorney General and the Deputy Attorney General have hierarchical authority over federal enforcement agencies, and, as noted, many federal enforcement agencies are not even housed with the Justice Department. Nonetheless, a U.S. attorney's office's status as gatekeeper to the federal courts—since agencies cannot prosecute cases without it—gives it considerable influence on agency operations within its jurisdiction.
Determining the federal role
A second challenge facing federal law enforcement agencies is devising a role that addresses national enforcement priorities but still reflects their own special capabilities (and limitations). As political pressure has propelled federal agencies to target violent crime, such a balance has become increasingly difficult to strike. A drive-by shooting may be precisely the sort of crime that the police are best able to address and that they should be held responsible for addressing. But the shooting may be part of a broader pattern of racketeering by a well-structured gang that funds itself with interstate drug trafficking and gets its weapons from out of state. Such an enterprise would be a fitting target for a federal agency that is undeterred by state boundaries and that, lacking broad patrol obligations, can strategically invest its resources in high-impact cases.
As this scenario suggests, a key to the efficient allocation of scarce federal resources will often be coordination with state and local police, particularly in the sharing of information. This in itself will often require striking a difficult balance, because all law enforcement agencies are traditionally protective of their investigative data, and because federal enforcers may also find themselves investigating police corruption or civil rights violations. But no federal agency or agencies can ever hope to duplicate the informational networks available only to a force with broad patrol responsibilities. To promote effective coordination, federal agencies have, here too, turned to the task force model, working with state and local units to target specific criminal organizations or specific types of criminal activity, like narcotics trafficking, terrorism, or bank robberies. Federal agencies have also cultivated the goodwill of state and local authorities by providing access to federal funds and equipment, and by assisting them in the interstate aspects of those authorities' own investigations.
Occasionally, state or local enforcers will complain of intrusions by federal agencies into areas of traditional local concern. Given the degree of statutory overlap between the state and federal systems, however, what is remarkable is not the occurrence of such disputes but their relative infrequency. Spurred by their own needs, and sometimes by political pressure from congressional delegations protecting local interests, federal enforcers have generally developed close working relationships with state and local authorities.
As federal enforcement agencies operate in the twenty-first century, they will increasingly find themselves facing similar coordination issues arising out of their efforts to combat criminal activity that crosses national boundaries. At least for now, state and local authorities are rarely equipped to investigate and prosecute, for example, a fraud on an American bank perpetrated by a foreign national sitting at a computer thousands of miles away. The task will thus fall to federal enforcers, who will not be able to proceed without assistance from foreign authorities, and who therefore must develop cost and information sharing arrangements that will encourage such cooperation.
Daniel C. Richman
See also Drugs and Crime: Legal Aspects; Economic Crime: Antitrust Offenses; Economic Crime: Tax Offenses; Federal Bureau of Investigation: History; Federal Criminal Jurisdiction; Forfeiture; Kidnapping; Mail: Federal Mail Fraud Act; Organized Crime; Prosecution: Prosecutorial Discretion; Prosecution: United States Attorney.
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Geller, William A., and Morris, Norval. "Relations between Federal and Local Police." In Modern Policing. Edited by Michael Tonry and Norval Morris. Chicago, Ill.: University of Chicago Press, 1992. Pages 231–348.
Glazer, Elizabeth. "Thinking Strategically: How Federal Prosecutors Can Reduce Violent Crime." Fordham Urban Law Journal 26, no. 3 (March 1999): 573–606.
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