Prosecution: United States Attorney

This entry has suggested that United States attorneys are perhaps most distinguished from other prosecutors in the degree to which they must make significant judgments regarding how much of their efforts should be devoted to addressing local, as opposed to federal, interests in crime control. Indeed, United States attorneys must strike an important balance between devoting their offices' resources to the vindication of uniquely federal interests and using these resources, as well as the federal criminal law, to address local priorities and concerns.

The necessity for striking such a balance stems in part from the broad reach of federal criminal jurisdiction. Prior to the Civil War, federal criminal laws (at least outside those territories where the federal government had exclusive jurisdiction) were largely limited to acts threatening federal governmental processes or programs, such as the theft of government property, and misconduct by or against federal officers. The civil rights legislation enacted after the Civil War (namely, the Civil Rights Act of 1866, ch. 31, 14 Stat. 27, and the Civil Rights Act of 1870, ch. 114, 16 Stat. 140), extended federal criminal law beyond mere protection of national authority, involving federal prosecutors in the safeguarding of local citizenry and creating the potential for overlap between federal and state enforcement authority. The growth of an interdependent, national market at this time further stimulated Congress to criminalize various forms of fraud involving misuse of the mails and interstate commerce. The twentieth-century experiment in the prohibition of alcohol resulted in an unprecedented expansion in the scope of federal enforcement authority. After Prohibition's repeal, federal criminal jurisdiction continued to grow, extending to conduct like kidnapping, extortion and robbery affecting interstate commerce, bank robbery, securities fraud, and the interstate movement of stolen property.

Today, federal criminal jurisdiction is nearly limitless and reaches matters ranging from odometer tampering to the embezzlement of union funds; from street-corner narcotics distribution to local loan-sharking. Even violent crimes once thought to be entirely within the jurisdiction of states and localities have become subject to federal jurisdiction and increasing federal control. For example, in March 1991, the Justice Department instituted a national enforcement program known as "Project Triggerlock," in which each United States attorney was instructed to appoint a task force for the purpose of targeting violent street criminals who employed guns in their crimes. The purpose of this effort was to take advantage of federal statutes imposing "stiff mandatory sentences" for firearms offenses (Geller and Morris).

Even though much criminal conduct is subject to the dual jurisdiction of federal and state and local authorities, federal prosecutions comprise less than 5 percent of all the prosecutions in the nation (Strazzella). In practice, this means that United States attorneys significantly influence the effective reach of the federal law with decisions they make about the activities they will focus on. These decisions are often made in cooperation with local authorities, most frequently through informal consultations, but sometimes through formal mechanisms like the Law Enforcement Coordinating Committees, which were instituted to bring together federal, state, and local law enforcement agencies under the aegis of a United States attorney.

In some instances, a criminal case subject to dual jurisdiction may be handled by the United States attorney simply because it was investigated by federal agents and presented to the United States attorney for prosecution. In other cases, however, local law enforcement officials may specifically request a United States attorney to handle a given investigation or a resulting prosecution because federal law offers more advantageous rules for obtaining and presenting evidence than those in the affected locality. The remedies in federal criminal legislation can include asset forfeiture, which may offer state and local agencies both the enhanced ability to disable a criminal organization and the possibility of a share in forfeited assets. At any rate, and for a combination of reasons, there is a high degree of successful intergovernmental collaboration between United States attorneys and state and local law enforcement agencies.

Despite such successes, commentators have expressed the need for articulation of some principled basis for the exercise of federal prosecutorial discretion in cases of concurrent jurisdiction. The calls for principles to guide the exercise of federal power in this context, moreover, have grown more fervent since the federal Sentencing Guidelines went into effect in 1987. The Guidelines were promulgated in part to eliminate unjustified sentencing disparities within the federal system. Because the sentences they authorize are often more stringent than those commonly meted out in the discretionary sentencing regimes of many states, however, they can produce situations where similarly situated defendants may be subject to radically more stringent sentences simply because they are prosecuted in federal court. (The mandatory minimum sentences specified in some federal criminal statutes can have similar effects.) Given the relatively small number of federal prosecutions, this raises concerns that a small minority of defendants may be haphazardly "selected for federal prosecution and subjected to much harsher sentences—and often to significantly less favorable procedural or substantive standards—than persons prosecuted for parallel state offenses" (Beale, 1995). Though limited progress has been made on articulating standards for the exercise of federal prosecutorial authority in the context of concurrent jurisdiction, such concerns may point to the need for more efforts in this direction.