LAW ENFORCEMENT AND FEDERAL–STATE RELATIONS

This country has long been committed to the notion that primary responsibility for law enforcement should reside in state and local governments. Over the past century, however, changes in the federal criminal system have affected the traditional balance among federal, state, and local responsibilities for law enforcement. We may be slowly moving in the direction of a national police force.

The Supreme Court has affirmed the constitutionality of an expanded federal legislative authority in the realm of criminal enforcement. Congress has enacted numerous statutes under this expanded federal authority. As a result, the federal criminal code has begun to look more and more like a state criminal code in its substantive content and even in its jurisdictional reach and form.

Over the long term, the balance among the several law enforcement jurisdictions will be determined not only by the breadth of the law on the books but also by its implementation in practice. The type and magnitude of police resources available to the federal government and the attitudes of the electorate and decision makers in key governmental institutions are likely to determine whether a broad federal criminal authority will supplant state and local responsibilities. Here, too, some changes have begun.

The traditional allocation of law enforcement responsibilities assigns to local governments the basic policing of crimes such as homicide, theft, robbery, rape, burglary, muggings, and the like. Local police have responsibility for patrol, for immediate response to reports of crime, and for investigations. A huge number of local officers presently performs those functions nationwide, particularly in metropolitan areas. The idea of a "national police force" directed from Washington, D.C. taking over these functions seems far-reaching. But one can imagine substantial shifts in the traditional division between federal and local responsibilities that would be accompanied by growth of a significantly larger corps of federal police that might fairly be called a national police force.

The jurisdictional reach of the federal criminal code has expanded in many ways over the past century. Most federal criminal legislation not aimed at protecting direct federal interests, such as federal funds or property, has been constitutionally based in Congress's enumerated powers—for example, the postal power, the taxing and spending power, and the power to regulate commerce among the states. (See national police power.)

Use of the postal and taxing powers as a basis for federal criminal jurisdiction has not changed much over the years. The use of the mails was relied upon early in the mail fraud statute enacted in 1872. A comprehensive registration-tax scheme was utilized in the original major antinarcotics legislation, the harrison act of 1914. The commerce clause which began its criminal law history as a fairly narrow jurisdictional base—requiring transportation or travel across a state line—in modern times has been expanded. In a number of statutes, federal jurisdiction is now based on the use of the facilities of commerce such as interstate telephone calls, telegrams, and any kind of interstate movement of persons or goods.

the effect on commerce formula, originally developed in the economic regulation sphere, has also broadened the bases for federal criminal jurisdiction. The nexus with commerce required under that formula is not very substantial. And the "effect on commerce" formula itself has been extended to situations where the criminal activity merely takes place on the premises of a business whose operations affect commerce. Furthermore, in perez v. united states (1971) the Court accepted congressional findings that a type of criminal conduct was part of a class of activities affecting commerce, and held that that type of conduct could be made a federal crime without any showing of an effect upon commerce in the individual case. Although in most cases similar to Perez proof of an effect upon commerce probably can be shown, Perez represents the furthest expansion of the reach of federal criminal jurisdiction under the commerce power.

The necessity to rely upon enumerated powers led Congress to enact crimes in forms differing markedly from the usual state penal code. Often, otherwise innocuous conduct that provided the basis for federal jurisdiction became the central element of the offense. Congress made criminal the transportation in commerce of lottery tickets, or obscene literature, or women for immoral purposes; depositing a letter in the mails to execute a fraudulent scheme; or affecting commerce by robbery or extortion.

The odd form of these crimes has produced concerns peculiar to federal criminal law. The prosecution of federal crimes often overemphasizes the jurisdiction element. The Supreme Court in four decades has, in five mail fraud cases, faced the question whether mailing was done for purposes of the fraudulent scheme; during the same period, the Court has not once considered the sometimes perplexing question of what constitutes fraudulant conduct under the statute.

The jurisdictional reach of federal criminal statutes has also developed in an odd checkerboard pattern. For example, originally, federal law made it a crime to use the mails to defraud but not the telegraph or telephone. Many such inconsistencies have been eliminated, but some still remain.

thePerez decision may also have far-reaching effects on the form of federal crimes. The case is usually cited for its effect in expanding the jurisdictional reach of federal criminal laws. However, the more important impact of the case may be that Congress can now, if it is so minded, draft a criminal code in a form substantially identical to a state penal code. Under such a code, the federal prosecutor would not have to prove the jurisdictional element in a crime belonging to a commerce-related class of activity; the proof would resemble the evidence offered in comparable state prosecutions.

Congress has not yet fully taken up the Perez invitation. In addition to the consumer credit statute enacted in 1964, the most significant statutes using this drafting approach are the illegal gambling business statute and the Comprehensive Drug Abuse Prevention and Control Act, both enacted in 1970. Federal drug crimes, which were historically based on the taxing power, are now based on the commerce power and defined in traditional criminal law terms.

Many traditional crimes have long been subject to punishment under the federal criminal code where a direct federal interest is involved, when the offense occurs on federal property or in a location for which the federal government has a special responsibility, or when federal funds are involved or persons are injured. Thus murder, manslaughter, and rape are federal crimes when committed "within the special maritime and territorial jurisdiction of the United States." And where criminal conduct on federal lands is not punishable by any specific federal enactment but would be a crime under state law, federal law incorporates state law and makes the conduct punishable.

However, traditional crimes have also been made federal offenses where no direct federal interest is involved. Legislation of this type is usually justified on the ground that the crimes involved are often committed by criminal groups organized and operating in more than one state, thus calling for nationwide investigation and prosecution. Such offenses are broadly defined, however, and do not limit federal prosecution to instances where the conduct involved can conveniently only be investigated and prosecuted by federal authorities.

There is today hardly a major crime category treated in state penal codes that is not also a federal crime, even in the absence of a direct federal interest. Ignoring for the moment the jurisdictional limits, examples of such crimes include: prostitution (mann act, 1910); various forms of theft involving stolen motor vehicles, other stolen property, and theft from interstate shipments (Dyer Act, 1919); bank robbery (1934); robbery (Anti-Racketeering Act, 1934); extortion (Anti-Racketeering Act, 1934); kidnaping (1932); threats (1934); arson (Travel Act, 1961); bribery (Travel Act, 1961); rioting (1968); sexual exploitation of children (1978); and murder (racketeer influenced and corrupt organizations act, RICO, 1970).

In several instances, state crimes have played a more direct role in the federal criminal code. In three important pieces of complex criminal legislation—the Travel Act of 1961, the gambling business statute of 1970, and the RICO statute of 1970—Congress adopted the legislative technique of making the commission of certain crimes in violation of state law a federal crime under specified circumstances. In these instances, federal law did not simply cover the same ground as the state crime; it became identical to it.

The effect of these changes in jurisdictional reach, form, and substantive coverage has been to move the federal criminal code closer to the form and content of the fifty state penal codes with which it overlaps. Certain benefits have resulted from these changes. Many anomalies and inconsistencies in federal crime coverage have been eliminated. It is now also easier for the federal government, in a limited fashion, directly to supplement state and local efforts to combat ordinary crime.

These changes also have their costs. The old emphasis on jurisdiction and the checkerboard pattern of coverage have served as a constant reminder of the limited role of the federal government in protecting local communities against ordinary crime. As these elements in the code are eliminated, it becomes easier to think in terms of an expanded federal role.

The balance of responsibility necessarily will continue to remain with the states as long as federal law enforcement resources remain small in comparison to state and local forces, and federal prosecutions remain a small percentage of the total prosecutorial caseload of the country. Overall, there are about fifty major federal criminal enforcement agencies with approximately 50,000 field personnel. Most of these have specialized duties and limited jurisdiction. Approximately 35,000 federal felony prosecutions are initiated annually by about 2,000 federal prosecutors. This federal picture should be contrasted with that at the state and local levels where approximately 19,000 police agencies employ about 500,000 sworn officers, and in excess of 700,000 prosecutions are begun each year by more than 20,000 state and local prosecutors.

A dramatic increase in the number of federal law enforcement personnel or their combination in a single agency would have to occur in order to create the conditions for a major shift of law enforcement responsibilities to the federal realm. However, such a shift could also conceivably occur through a shift of military personnel into domestic law enforcement, or by the development of federal control over state and local agencies.

The growth of existing federal law enforcement agencies has been significant although not dramatic. In the past thirty years, the federal bureau of investigation (FBI), the largest federal law enforcement agency and the one with the most general criminal enforcement authority, has grown from 3,000 to 8,000 agents; the Secret Service has expanded from 300 to 1,500; and the Customs Service, from 150 to 600 agents. The Drug Enforcement Administration (DEA) has grown tenfold from 200 to 2,000 agents.

The 1970s and 1980s have seen moves toward consolidation of separate agencies. The Bureau of Narcotics, originally located in the Treasury Department, was shifted to the Department of Justice, and later became the DEA. Recently the FBI, which had never before had any significant investigative responsibility for drug matters, moved strongly into that field and began working closely with DEA. DEA personnel may eventually be absorbed into the FBI, a move that would increase the personnel of that agency by more than one-fifth.

Even if agencies continue to grow and merge, a dramatic shift of law enforcement responsibility from state and local governments to the federal government seems unlikely in the foreseeable future. The creation of a single, really large corps of federal enforcement personnel would require considerable expansion of either the rate of growth or the practice of combining agencies.

Resources for a national police operation might also conceivably become available through increased use of the military to enforce domestic law. There is a strong tradition, founded in part in the same concerns as the commitment to local responsibility for law enforcement, against the involvement of the military in law enforcement. In the context of military surveillance activities directed against civilians, Justice william o. douglas once suggested that "turning the military loose on civilians even if sanctioned by act of Congress … would raise serious and profound constitutional questions." A statutory prohibition against the use of the military to enforce domestic law, the posse comitatus act, was enacted in 1878. The act makes it a crime to use the military forces "to execute the laws" except as expressly authorized by Congress or the Constitution.

The Supreme Court has not yet authoritatively interpretated the Posse Comitatus Act. Existing lower court interpretations permit some limited involvement of the military in domestic law enforcement. Several different constructions of the act were advanced in a series of decisions growing out of the occupation of Wounded Knee, South Dakota, by American Indian Movement members, for example, that the act is violated only by direct active use of federal troops in domestic law enforcement. Specific statutory exceptions also allow the domestic use of the military to enforce the laws, in cases of civil disorder, threats to federal property, and protection of federal parks, foreign dignitaries, and certain federal officials.

Increased federal efforts to combat drug smuggling have strained the Posse Comitatus Act. The desire to use navy ships and air force planes against smugglers led to enactment in 1982 of a statute that made further inroads on the act. Though limited, the new law is important because it is the first statutory modification of the Posse Comitatus Act for ordinary law enforcement purposes in the more than 100 years since its enactment. This is an area where special care should be taken; by a single stroke, Congress can effect a major change in the traditional law enforcement balance.

In the decades of the 1970s and 1980s there has been increasing federal involvement with state and local law enforcement. The Law Enforcement Assistance Administration, established in 1968 and terminated in the late 1970s, involved a massive federal grant-in-aid program to state and local governments for law enforcement purposes. The potential of this technique for giving the federal government control over local law enforcement policy decisions has not been fully realized.

Formal arrangements of cooperation between federal and state and local agencies are also increasing. Fourteen federal organized crime strike forces and twelve special drug task forces involving cooperating teams of federal, state, and local law enforcement agents have been established in major cities throughout the country. Policymaking committees composed of federal, state, and local law enforcement officials also meet.

The picture presented is one of increasingly close cooperation and interdependence of law enforcement agencies at the federal, state, and local levels. The existing programs do not yet, however, add up to the establishment of a basis for federal control.

As long as there is a national consensus that the primary responsibility for law enforcement should remain at the local level there is no serious likelihood that Congress would authorize the resources to create a national police force to enforce what is becoming a true national criminal code. Any assessment of trends in the national consensus on an issue of this nature is, of course, difficult to make. One can only point to certain factors which serve as general indicators.

The focus and rhetoric of national discourse on the role of federal criminal law enforcement have changed somewhat in recent years. Crime has increasingly become a source of public concern and a standard topic of national political discussion. Correspondingly, the federal government's public pronouncements have assumed increasingly larger responsibilities for federal law enforcement. The federal emphasis in the 1950s and 1960s focused on organized crime and political corruption. In the 1970s the emphasis shifted to white-collar crime. In the 1980s the federal government has added to its emphasized responsibilities a massive attack on drugs and violence.

In the 1960s, the attorney general of the United States never spoke of the federal government's role in law enforcement without at least paying lip service to the principle that primary responsibility rests at the local level. In the 1980s the attorney general in his major addresses generally speaks of working closely with state and local law enforcement officials and the development of a national strategy.

Any serious moves toward substantial enlargement of federal law enforcement responsibilities might be opposed by state and local governments. As matters stand, these authorities typically welcome increasing federal assistance and involvement, because the crime problem is too big for local officials to handle alone. Of course, this condition augurs continued growth of the federal arm. One wonders when that growth will begin to be seen as a threat.

Congress itself continues to recite the local responsibility credo even while it expands the scope of the federal code. Although the Supreme Court has not imposed significant constitutional restraints on the reach of federal penal legislation, it has adopted a restrictive maxim of interpretation: unless Congress expresses itself unambiguously it will be presumed not to have intended to change the traditional state-federal balance in law enforcement. If the prospect of a national police force loomed on the horizon, would the Court resurrect significant constitutional limits?

Perceiving the prospect of a national police force simply in the continued expansion of the federal criminal code would be foolish. That growth, however, creates one of the conditions that would enable a national police force to function. And the very existence of an enlarged code may generate some pressure to enforce it actively. Nothing can happen, of course, unless the national consensus breaks down. There, too, some signals could mean that the "impossible" is at least possible. The development of a national police force is not imminent, but there are enough portents to suggest that we should keep in mind words uttered by Justice felix frankfurter in youngs-town sheet & tube co. v. sawyer (1952), a case involving assertion of national executive power: "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."

Norman Abrams
(1986)

Bibliography

Abrams, Norman 1970 Report on Jurisdiction. Pages 33–66 in National Commission on Reform of Federal Criminal Laws: Working Papers, vol. 1. Washington, D.C.: The Commission.

——1986 Federal Criminal Law and Its Enforcement. St. Paul, Minn.: West Publishing Co.

Schwartz, Louis B. 1948 Federal Criminal Jurisdiction and Prosecutors' Discretion. Law and Contemporary Problems 13:64–87.

Stern, Robert L. 1973 The Commerce Clause Revisited: The Federalization of Intrastate Crime. Arizona Law Review 15: 271–285.