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An United States attorney is the chief federal law enforcement officer in one of the ninety-four judicial districts in the United States (excepting Guam and the Northern Mariana Islands, which share a United States attorney). Appointed by the president, with the advice and consent of the Senate, United States attorneys work with grand juries and law enforcement agencies to investigate federal crimes, authorize or decline prosecutions, and determine the charges to be brought and the manner of prosecution. Overseeing a staff of assistant United States attorneys who conduct much of the day-to-day work of the office, the United States attorney is responsible for trying federal criminal cases on behalf of the United States, as well as negotiating guilty pleas and representing the United States in the appellate courts within the district. The United States attorney is also the principal litigator for the United States within his or her district in civil matters.
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United States attorneys differ from state and local prosecutors in several respects. First, unlike district attorneys who must rely principally upon state and local police for investigative assistance, United States attorneys can typically draw upon the national resources and personnel of federal law enforcement agencies like the Federal Bureau of Investigation and the Drug Enforcement Administration. (This is obviously useful in investigations and prosecutions that involve witnesses or evidence located in another district or even another country.) Next, while the legal authority of local prosecutors to investigate crime is generally limited to the state in which they work, the United States attorney can bring to bear the broader legal authority of the federal government. Working with a federal grand jury, which has nationwide subpoena power, the U.S. attorney can compel witnesses to appear in his or her district from wherever in the country they may be found. When a federal criminal defendant is arrested in another district on criminal charges brought by the United States attorney, there is no need for extradition; after a brief hearing to establish his identity, the defendant is simply transported from the district of arrest to the district where charges are pending.
Finally, and perhaps most significantly, most local prosecutors are elected to serve as the principal prosecuting authorities in their jurisdictions and, with their assistants, are broadly responsible to the electorate for the effective enforcement of criminal law. (There are roughly 25,000 to 30,000 state and local prosecutors nationwide; in 1996 these officials filed close to 998,000 felony charges.) The presidentially appointed federal prosecutor is somewhat different. Subject to removal by the president, he or she is responsible for protecting direct federal interests in the enforcement of certain laws—those reaching international terrorist activity, for instance, or prohibiting false statements to federal agencies or the counterfeiting of U.S. currency. More commonly, however, the federal prosecutor faces situations in which possible federal charges overlap with charges that could be prosecuted by state or local officials, who handle most criminal cases. (There were 4,773 assistant U.S. attorneys working in the ninety-three U.S. attorneys’ offices as of August 1999; together, these offices have averaged about 35,000 cases annually since 1930.)
Because the U.S. attorney is not the principal prosecuting authority in a jurisdiction and is not viewed as such, a federal prosecutor may well decline prosecution in circumstances where potential criminal charges can be effectively handled by state or local authorities. On the other hand, the U.S. attorney may elect to prosecute—either to vindicate federal interests implicated in a case or to assist state and local authorities in addressing more local concerns. In practice, this means that the United States attorney probably exercises even broader prosecutorial discretion than most other prosecutors.
The Attorney General of the United States has statutory authority to supervise the work of the United States attorneys and the U.S. attorneys act generally within guidelines promulgated by the Department of Justice. In practice, however, the federal prosecutor has considerable autonomy. The daily operations and priorities of each U.S. attorney’s office are largely under the U.S. attorney’s control. And though the attorney general has the authority to take direct control of any case falling within the jurisdiction of the U.S. attorney, this authority is rarely invoked. As set forth below, the United States attorney’s relative freedom from central authority derives not only from his or her distance from Washington, D.C., but also from the historical development of the position and the process by which each United States attorney is selected.
Origins of The United States Attorney
The office of the United States attorney was created by the Judiciary Act of 1789, ch. 20, 1 Stat. 73, which provided for the appointment in each federal district of ‘‘a meet person learned in the law to act as attorney for the United
States. . .to prosecute. . .all delinquents for [federal] crimes and offenses’’ (92). The same law established the office of the attorney general, but the attorney general’s function at this time was limited to representing the United States in the Supreme Court and advising the president and the heads of the executive departments of the federal government on legal matters. The attorney general had no formal control over the United States attorneys charged with enforcing federal criminal law in their respective districts. Though proposals to grant the attorney general such control were introduced in Congress as early as 1791, legislation to this effect was not enacted until 1861.
In the interim, United States attorneys (or federal district attorneys, as they were then known) occasionally consulted with the attorney general on a voluntary basis. And in certain celebrated cases such as the treason trial of Aaron Burr, the attorney general did participate, at presidential request, in lower federal court proceedings. But the first official grant of supervisory power over U.S. attorneys, however, went to the Treasury Department, not the Justice Department. Any intervention into matters falling with the jurisdiction of the local federal attorneys, moreover, was infrequent. Even after Congress enacted legislation giving the attorney general supervisory authority over United States attorneys in 1861 (ch. 37, 12 Stat. 285 (1861)), it was not until a decade later (after Reconstruction and the Justice Department’s creation in 1870), that federal prosecutors came under any meaningful national control.
The Selection Process
Both the Constitution and enabling legislation give the power to appoint United States attorneys to the president, subject to the Senate’s ‘‘advice and consent.’’ In practice, the senators of the president’s political party from a given state often make the initial selection of a candidate for United States attorney. If both senators are from an opposing party, the state’s congressional delegation or other state party officials may play a leading role. Each United States attorney is appointed for a term of four years, but generally continues in office at the expiration of his or her term until a successor is appointed. United States attorneys are subject to removal by the president. Assistant United States attorneys are appointed by the attorney general and are subject to removal by him or her, although in practice, the hiring and removal of assistant United States attorneys (who enjoy civil service protection) is handled at the local level. New U.S. attorneys will thus generally command a staff of assistants largely named by predecessors in office, but will themselves make the hiring decisions necessary to appoint new assistants.
The selection process for United States attorneys supports the traditional autonomy with which they have operated. Individuals who become United States attorneys typically do not view themselves as having obtained their appointment directly from the attorney general or the president. In congressional hearings in 1978, then–Attorney General Griffin Bell identified this as a problem, arguing that because United States attorneys may not feel indebted to the attorney general for their positions, they are less likely to accede to supervision emanating from him or her. Bell supported legislation giving the attorney general the power to select and remove United States attorneys. Such legislation, however, was never enacted.
There may be merit in Attorney General Bell’s observation that lodging the appointment power for United States attorneys in the Attorney General would produce United States attorneys more responsive to his or her concerns. Whether such increased responsiveness to national law enforcement officials is itself seen as a worthy goal of reform efforts, however, is likely to depend, at least in part, on the view one takes of the United States attorney’s role. If the United States attorney’s principal role is to implement national law enforcement priorities articulated by the president and the attorney general, the United States attorney should presumably be strictly accountable to these officers, and perhaps appointed directly by them. If, on the other hand, the United States attorney is to be responsive to local concerns—if it is a substantial part of the role to bring federal law enforcement resources to bear on local problems—it may be a strength of the current selection process that it often involves persons familiar with and directly responsible to the local electorate, such as senators and other locally elected officials.
It is also important that the United States attorney have and be perceived as having the independence necessary to enforce the law fairly— and particularly in those contexts where law enforcement policy and even individual prosecutions may have political overtones. The multiple influences brought to bear in the current selection process may help realize this end by securing for the federal prosecutor some measure of autonomy from any one of these influences.
Thus, the involvement of national political figures in the selection process helps to ensure the United States attorney’s independence from the control of local officials. A federal prosecutor perceived as having obtained his or her appointment from a narrow circle of partisan politicians might well find his or her ability to discharge the functions of the office compromised. Similarly, however (and despite a tradition of nonpartisanship in the discharge of the functions of the office), attorney generals are not infrequently drawn into situations where there may be at least the perception of a conflict between their law enforcement obligations and their perceived personal and political loyalties to the presidents who appointed them. (It was the perception of the potential for such conflicts that resulted in the enactment of the Independent Counsel Statute, which Congress allowed to lapse only in the wake of the controversy surrounding Independent Counsel Kenneth Starr’s investigation of President William Jefferson Clinton.) In such cases, it may be important that United States attorneys retain a measure of independence from the attorney general as well as local officials, lest the law enforcement activities of these federal prosecutors be influenced by or perceived as influenced by inappropriate national political concerns.
Some tradition favoring ‘‘merit,’’ as opposed to purely ‘‘political’’ appointment of United States attorneys, also helps ensure their independence from narrow political control. This tradition manifests itself in a variety of ways. For example, senators not infrequently set up nominating commissions to submit names of suitable candidates for United States attorney slots. Some United States attorneys have remained in office through a change in administration—implicitly attesting to the relatively nonpartisan way in which these offices can function and can be perceived.
Although the Justice Department’s supervision of United States attorneys has increased in recent years, the United States attorney retains substantial independence. As noted above, the United States attorney’s daily operations remain largely free of centralized control by Justice Department officials in Washington, D.C. United States attorneys are explicitly vested with ‘‘plenary authority’’ over prosecutions in their districts. And even when the Justice Department establishes national prosecutorial priorities in the interest of allocating limited resources in such a way as to achieve an effective nationwide law enforcement program, United States attorneys may still establish their own priorities, ‘‘within the national priorities, in order to concentrate their resources on problems of particular local or regional significance’’ (U.S. Department of Justice, 1997).
To be sure, there are areas in which the Justice Department exercises more direct supervision. With regard to a handful of offenses, for instance, including the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., which is often used to prosecute organized crime, central approval to prosecute must be obtained in order to ensure some uniformity of charging standards. Tax prosecutions are also subject to more intense central control. The Solicitor General must authorize all appeals taken by U.S. attorneys. Any decision to seek or not to seek the death penalty must be approved by the attorney general. Justice Department officials in Washington also resolve interdistrict jurisdictional disputes that may arise among U.S. attorneys.
In addition, Congress has enacted legislation requiring more centralized control of some of the investigative tactics employed by federal prosecutors. Thus, high-ranking Justice Department approval is required before prosecutors may seek warrants for various forms of electronic eavesdropping. Applications for orders compelling the testimony of immunized witnesses must be signed by officials working more directly under the supervision of the attorney general. The Justice Department itself, as a matter of internal regulation, requires that central approval be obtained before an indictment is sought charging a person with a crime that has already been the subject of prosecution by local authorities. Central approval must also be obtained before subpoenas are issued to attorneys for information relating to the representation of clients.
Role in Local Law Enforcement
This research paper 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.
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