This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season.  The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of federal criminal enforcement to the pressing social harms that justify their existence

Buell, Samuel W.

English

Duke Law Scholarship Repository

Among its many costs, September 11, 2001, stunted thedevelopment of federal government policy in ways that,hard as it is to believe, are still underappreciated. Con-sider the United States Department of Justice, specificallyits criminal enforcement mission. We have been dis-tracted from—or perhaps inexcusably have lackedinterest in having—a critically important conversationabout the future of this mission.Having quite deliberately, and in many cases for goodreason, created in the criminal jurisdiction of our federalcourts the most powerful tools available to any domesticactor, we have failed to discuss explicitly how these toolsought to be used. And, most urgently, we have not thoughtcarefully about how to design executive branch institu-tions to give law enforcement officials the properincentives to use those tools for good rather than ill.Many of the innovative devices of modern federal lawenforcement—things like the Title III scheme for elec-tronic surveillance, the RICO statutes, flexible proceduraland evidentiary rules surrounding conspiracy liability,enhanced penalties for weapons offenses connected tonarcotics and violent crimes, money laundering crimes,and so on—have been success stories to the extent theyhave assisted society in keeping pace with the most threat-ening and dangerous actors bent on imposing harm onothers.The problems these laws present are ones of over-breadth: how to manage legal space within whichenforcers may use these laws to sanction individuals whodo not deserve serious sanction or persons whose behav-iors are not sufficiently harmful to justify costly deterrenceefforts. The conversation we need to have about theselaws, and about the institutions through which they areenforced, is not a conversation about repealing or expand-ing them so much as a conversation about how to usethem. However good the policy justifications for creatingthese laws, we have made the contemporary federal prose-cutor a kid in a candy store. Most do not act like children,of course. But we have not even tried to create incentivesthat would steer enforcement actors toward relativelyfewer and more labor-intensive cases involving sophisti-cated and threatening criminal actors and away fromhigh-volume cases involving low-level criminal actors forSAMUEL W.BUELL*AssociateProfessor,WashingtonUniversity School of Law,St. Louis, MissouriF E D E R A L  S E N T E N C I N G  R E P O RT E R • VO L . 2 0 , N O. 5 • J U N E  2 0 0 8326whom the powerful tools of federal law enforcement areunnecessary and often terribly costly overkill.Between roughly 1970 and 2000, the institution of fed-eral criminal justice passed through a sea change. Prior to1970 (and perhaps leaving aside Prohibition’s early-twenti-eth-century detour), the federal prosecutor’s office was asmall social institution that mostly affected specializedareas of government concern like the post office and occa-sionally, though with limited effects, a handful ofhigh-profile problems like the Mafia. By 2000, it was amajor regulatory bureaucracy that had produced thelargest prison population in the United States and reachedinto nearly every area of pressing social concern, rangingfrom regulation of corporate managers in vast financialmarkets to the control of people and contraband, and asso-ciated harmful activities, flowing into the United Statesfrom abroad.This transformation was no accident. Congress, theexecutive branch, and the courts all deliberately facilitatedthe change, primarily in four ways: rapid expansion, inboth quantity and breadth, of substantive federal crimes; amassive, innovative project to impose determinate andequality-based sentencing, the United States SentencingGuidelines; dramatic growth in the size and resources ofthe federal criminal bureaucracy, especially the numbersof federal agents, prosecutors, judges, courthouses, andprisons; and, with somewhat less impact, rejection in theperiod after the Warren Court of opportunities to limitpolice and prosecutorial powers through rules of criminalprocedure, constitutional and otherwise. The politicaleconomy of crime in the United States generated demandfor legal and institutional change in the federal govern-ment and this demand was answered, if not sated.By the end of the 1990s, consumer’s remorse began tocreep into the system, at least among academics and somejudges. Regret manifested itself in sharp criticism, and aslight retrenching move or two in the judiciary, in theareas of determinate sentencing and expanded liabilityrules. A growing chorus of critics blamed synergiesbetween broad and redundant liability rules and ever moresevere and less flexible sentencing guidelines for produc-ing a regime that made it far too easy for prosecutors touse charging and plea bargaining practices to obtain guiltyTime for a Twenty-First-Century Justice DepartmentFederal Sentencing Reporter, Vol. 20, No. 5, pp. 326–328, ISSN 1053-9867 electronic ISSN 1533-8363©2008 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website,http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2008.20.5.326.pleas in too high a proportion of cases to, on average, toohigh terms of imprisonment. Serious questions were aris-ing about the overall size of the federal prison populationand the relative dangerousness and culpability of manymembers of that population. Then came September 11.The beginning of the George W. Bush administrationwould have been an opportune time for an assessment ofthe costs and benefits of the great explosion in federalcriminal law of the end of the last century and for a discus-sion about the role of federal criminal justice in the newcentury. That discussion, although it had been gainingmomentum in the academy and the courts, never reachedthe legislature or executive. Perhaps it never would have,from lack of political will. But September 11 ensured that itdid not, by placing nearly the entire federal government inreactive and defensive modes of thinking from which ithas not been dislodged. Not only did global affairs pushdomestic crime control, among many other matters, offthe national policy agenda but much of the law enforce-ment bureaucracy was diverted to an ill-defined mission ofpreventing terrorist attacks for which it was poorlyequipped and to which it struggled to adapt. Ironically, theconsensus on September 12 that “everything is forever dif-ferent” has been a major impediment to reformativethinking about crime control.Should a new administration wish to cast fresh eyes onthe role of federal criminal justice in twenty-first-centuryAmerica, here are three questions it should ask itself.First, what if anything happened during those transforma-tive three decades at the end of the last century that was aninnovation of genuine social value? Though critics do notoften acknowledge the gains, there was much to like in theperformance of federal criminal justice in the period from1970 to 2000. Coupling of enforcement resources withinnovative legal tools like the RICO statutes produced his-toric gains that have crippled if not destroyed coreorganized crime as we knew it. Although internationalalien smuggling and drug trafficking networks are seem-ingly ineradicable, money laundering enforcement andconspiracy prosecutions, and extraterritorial reach of fed-eral criminal law and its enforcement, have hamperedtheir ability to operate with impunity across the globe. Thelaw’s deterrent arsenal against sophisticated, large-scalecorporate fraud is now bolstered by a highly credible threatof effective prosecution and serious punishment that usedto be practically nonexistent. Some of the reduction inhomicide rates in major urban areas of the past fifteenyears is undoubtedly attributable to the innovation of pros-ecuting the most violent gang leaders in federal court,using tools previously reserved for traditional organizedcrime.These are a few among what can legitimately beclaimed as victories. Crime conducted for profit, like anyindustry, evolves and grows more sophisticated. This istrue whether such pursuits involve fraud, narcotics traffick-ing, robbery, gambling rackets, corruption in government,laundering of the criminal profits of others, or any numberF E D E R A L  S E N T E N C I N G  R E P O RT E R • VO L . 2 0 , N O. 5 • J U N E  2 0 0 8 327of other pursuits of the criminal entrepreneur. Federalcourt has been the primary venue in which the law—created, adapted, and given enforcement resources bymembers of Congress, federal prosecutors, and federaljudges—has kept pace with these developments.Second, what unwanted social costs did these innova-tions produce? The principal problem with the federalcriminal justice system is that it has grown vastly over-broad. In an effort to maintain legal tools that arestate-of-the-art, legislators, prosecutors, and judges havecreated a regime that has the capacity to massively over-sanction. Steep sentencing multipliers for crack cocaineand certain kinds of gun cases might be useful in leverag-ing testimony that brings down leaders of violent streetgangs, but they permit draconian sentences to be imposedon the low-level cocaine possessor or the petty criminalwith a record who happens to possess a handgun, oftenwith racially discriminatory impacts.A broad money laundering statute can help the lawreach the financier whose knowledge about the specificsof underlying criminal activity might be tough to prove,but it also risks allowing prosecution of relatively unwit-ting people who engage in downstream commercialtransactions that happen to involve criminal proceeds.RICO’s conspiracy provision might make it easier to reachmob bosses who keep themselves distant from criminalacts by delegating tasks to underlings, but it can also leadto serious federal prosecution of a government executivewho did not do enough to prevent some graft in heradministration. Overbreadth problems like this arise invirtually every area of substantive and procedural federalcriminal law that is implicated in the pursuit of sophisti-cated and difficult-to-prosecute criminal activity.Third, what could be done to salvage the benefits of atransformed federal law enforcement bureaucracy whileworking to eliminate its costly by-products? One approachwould be to continue to rely on the informal compromisesthat have guided the system to this point. On the whole,federal prosecutors have exercised restraint in reservingthe potent legal tools they possess for the kinds of seriouscases for which such tools are genuinely necessary. On thewhole, Congress has been willing to grant broad tools tothe executive branch on the understanding that such pow-ers will not be abused. On the whole, the federal judiciaryhas refrained from sharply curtailing executive branchpowers in the belief that the Justice Department sees itselfas a responsible public institution and not simply a litigantthat should push every advantage to its logical limit.But these compromises seem more unsteady as thefederal criminal justice bureaucracy, especially its prisonpopulation, continues to mushroom and as the executivebranch, in recent years, pursues legal positions that departfrom preexisting norms. It is high time that federal policymakers asked themselves much more self-consciouslywhat should be done to ensure that federal enforcement ischanneled toward the acute problems for which its awe-some powers are uniquely suited and away from wastefulF E D E R A L  S E N T E N C I N G  R E P O RT E R • VO L . 2 0 , N O. 5 • J U N E  2 0 0 8328oversanctioning of relatively unthreatening actors andbehaviors.Bureaucracies, after all, can be expected to behave likebureaucracies the larger and more entrenched they grow.Lack of enforceable legal controls and the iron tendency ofbureaucrats to stray from their public missions andbehave in a lazy or self-interested manner are certain toproduce greater problems in the future. It is deeply con-cerning that in the short span from 1989 to 2003 thenumber of assistant United States attorneys more thandoubled and the number of federal prisoners more thantripled.1 If the purpose of federal court, at least where itsjurisdiction largely duplicates state criminal jurisdiction,is to deal with the toughest of problems, do we really needsuch a big institution? The Justice Department ought tolook seriously at shrinking the size of the federal criminaljustice bureaucracy, while evaluating its performance withqualitative measures that deny significance to the num-bers of prosecutors, prosecutions, prisoners, or prisoneryears that the system produces. Powerful legal tools neednot be dismantled in order to ensure that they are not usedin the wrong kinds of cases.The United States Department of Justice is a uniquelyvaluable domestic institution. After a period of stunningascendancy at the end of the last century, the institutionhas faltered—perhaps as much from strategic neglect asfrom deliberate diversion of its mission in service of politi-cal and foreign policy objectives that most Americans haveconcluded were misguided. A twenty-first-century execu-tive branch should set as a priority thoughtfulconsideration of how to confine the powerful tools of fed-eral criminal enforcement to the pressing social harmsthat justify their existence.Notes* E-mail: swbuell@wulaw.wustl.edu. From 1994 to 2004, theauthor served as a federal prosecutor in New York, New York;Boston, Massachusetts; Washington, D.C.; and Houston,Texas. He twice received the Attorney General’s Award forExceptional Service, which is the U.S. Department of Jus-tice’s highest honor.1 See U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCE-BOOK OF CRIMINAL JUSTICE STATISTICS tbl. 6.53 (Timothy J. Flanagan& Kathleen Maguire eds., 2004); U.S. DEP’T OF JUSTICE, BUREAU OFJUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbl.1.79 (Ann L. Pastore & Kathleen Maguire eds., 2003); U.S.DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OFCRIMINAL JUSTICE STATISTICS tbl. 6.57 (Timothy J. Flanagan & Kath-leen Maguire eds., 1990); Admin. Office of U.S. Cts., Ann. Rpt.of Dir., Jud. Bus. of U.S. Cts. tbl. D-2 (1992).

Time for a Twenty-First Century Justice Department

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Time for a Twenty-First Century Justice Department

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