Federal Criminal Law Enforcement

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.