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Federal Criminal Law Enforcement - Sources Of Structural Fragmentation: History And Politics

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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.

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