How federal prosecutors can reduce crime - New Approaches to Fighting Crime, part 3

Public Interest, Summer, 1999 by Elizabeth Galzer

The striking drop in crime over the last few years, particularly in New York City, but also notable in some other cities, undoubtedly has many causes. The changes in policing methods have attracted the most attention. Police departments - and this is particularly the case in New York - have discovered the efficacy of problem-oriented policing, developing methods of collecting data on crime rapidly and accurately, mapping the location of different kinds of crime, discovering concentrations of and connections among crimes, deploying resources strategically, and anticipating trends. They have developed goals that measure not process but achievement - for example, not how many arrests have been made but has there actually been a reduction in crime.

Some local prosecutors are adopting similar approaches. They have begun to see their role as one piece of a puzzle: They are part of a larger system to reduce crime, rather than independent operators who simply prosecute one case after another. While the primary task of the prosecutor is, of course, to prosecute individual cases, some district attorney's offices have also begun to work with non-law-enforcement public agencies and community groups on specific local issues. Early involvement of these groups with truancy, for example, may prevent many youths from graduating to more serious crimes.

In this revolution, federal prosecutors have generally sat on the sidelines, adhering to the traditional model of case-processing. Their attention remains on the specific case, not on crime as a whole. By defining his role in this way, the federal prosecutor has side-stepped any responsibility for crime reduction and consequently for crime control. But this has begun to change, particularly in New York, where federal prosecutors are developing a strategic, rather than a responsive, role (parallel to the extension of police activities beyond the simple response to a call for help). As the Chief of Crime Control Strategies for the U.S. Attorney's Office for the Southern District of New York, I have been deeply involved, for some years, in my office's efforts to bring about this change, and, along with others in law enforcement, I believe this contribution to crime reduction justifies a new strategic role for federal prosecutors. In this article, I will spell out this new role and how it may be further developed.(1)

Constitutionality vs. utility

Why should a federal prosecutor be involved in prosecuting local crime? Do we not have state and county and city agencies for that? It seems a far stretch from the explicit constitutional grant of federal authority in matters concerning treason, piracy, and counterfeiting to the broader grant of power under the commerce clause, which enables Congress to authorize, for example, federal prosecutions of some domestic-violence cases. There is an extensive literature criticizing federal activity in this arena, most recently in a report issued last month by an American Bar Association committee, chaired by former Attorney General Edwin Meese. I do not underestimate the serious and difficult constitutional concerns raised by the federal government's involvement in an area traditionally reserved to the states, but the practical and legal reality is that federal participation in criminal prosecutions is not a recent phenomenon. And this participation is now so wide and deep that it is more sensible to see how it may best be applied, rather than to consider how it can be pushed back into a neatly defined constitutional orbit.

What should be matters of federal concern and what should be matters of local concern are sometimes simply decided by the length of time the federal government has been involved in an area. For example, it is hard to imagine matters that are more classically local than the traditional rackets of mafia crime: gambling, loan-sharking, and prostitution. Yet federal mob prosecutions are now viewed as uncontroversial and, by some, as a primary area of federal involvement. How different, from a federal perspective, is the extortionate extension of credit to a small businessman by a mobster from the robbery of several grocery stores by a local gang? As a legal matter, the courts have shown little interest in drastically reducing federal power in the area of violent crime. Ironically, it has been administrations most protective of states rights, for example the Reagan administration, that have been the most active in extending federal power in criminal prosecutions.

Are there any advantages to the federal government having this power? Several are evident. First, Congress has given federal prosecutors powers that, if used properly, would enable them to have a comprehensive effect on various groups of serious criminals; such powers may not be available to local authorities. For the most part, crime rates do not reflect the spontaneous, unconnected actions of hundreds or thousands of individuals. Rather, there are organized and loose associations in the criminal world that often fuel interconnected crimes. There are also repeat locations - buildings or blocks that account for a large proportion of a neighborhood's crime spikes. Federal laws, such as racketeering (which permits the single prosecution of a group of interconnected defendants and crimes) or forfeiture (which targets particular crime-magnet locations), provide significant legal weapons not available to the states. And the nationwide reach of federal power makes it possible to build prosecutions extending beyond state borders. (For example, federal gun-trafficking laws could enable the wholesale interdiction of crime guns from one state to another.)