“…federal law enforcement operates on the same type of body count method that we used during the Vietnam War to measure success.”

Notes by Editor

Paul Larkin Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government at the Heritage Foundation, is an expert on federal law enforcement agencies and the over-criminalization of the regulatory code. In his paper “Reorganizing the Federal Administrative State: The Disutility of Criminal Investigative Programs at Federal Regulatory Agencies,”  he notes the structural flaws of using armed, investigative agencies to enforce federal regulatory compliance, adding that criminal law enforcement powers are under the purview of traditional (local) law enforcement agencies:

•Today, more than 30 federal agencies are authorized to investigate crimes, execute search warrants, serve subpoenas, make arrests, and carry firearms.

•Each agency has a criminal investigative division with sworn federal law enforcement officers even though the parent agency’s principal function is to regulate some aspect of the economy or contemporary life. That assignment creates a problem.

•The law enforcement and regulatory cultures are markedly different, and attempting to cram the former into an agency characterized by the latter hampers effective law enforcement. It dilutes the ability of a law enforcement division to accomplish its mission by housing it in an organization that is not designed to support
the specialized mission of federal criminal investigators.

•Accordingly, Congress and the President should reexamine the placement of federal criminal investigative units within regulatory agencies and reassign the members of those units to a traditional federal law enforcement agency.

In his testimony, given before the Senate Committee on Natural Resources and Energy on Wednesday, May 9, 2018, Larkin refers to the ‘Blanding tragedy’ as a classic instance of federal over-criminalization, in this case having to do with a personal collection of Native American artifacts. For more background on the ‘Blanding tragedy,’ please go here. Below is the hearing video. Larkin’s transcribed comments follow.

The Los Angeles Times, and my Colleague, Representative Noel have described what happened in Blanding, Utah, and based on what I have read, it seems to me the tragedy that occurred there had at least three causes. One was the mistaken decision by a BLM special agent to treat Dr. James Redd as if he were Pablo Escobar, and to conduct an assault and takeover of the Redd’s home as if they were members of a biker gang cooking meth. Now, that problem is not something Congress can fix. Congress can neither appoint nor train federal agents. But there are two other causes of that tragedy Congress can fix. One is ‘over-criminalization.’ It’s a neologism that describes the phenomenon of the overuse, the abuse, and the misuse of the criminal law.

One form that takes is the use of the criminal law, rather than the civil law or administrative law as a predominantly regulatory tool. Now, the focus of this particular hearing may not be on over-criminalization, but it is at the heart of the problem here. I’ve written a great deal about this in my position at the Heritage Foundation, and what happened in Blanding is a classic example of what happens when we over-criminalize the federal code.

The second factor is the Government’s decision to create criminal investigative divisions in proprietary and regulatory agencies. The problem with that is similar to the problem with the now-expired Ethics in Government Act of 1978; a loss of perspective. General law enforcement agencies like the New York Police Department in the city where I grew up, see the full range of conduct and can put in better perspective individual instances of misfeasance, malfeasance and wrongdoing than agents can when they only have a narrow specialty to investigate. Why is that? Because federal law enforcement operates on the same type of body count method that we used during the Vietnam War to measure success.

Federal law enforcement considers, particularly during the budget and appropriations processes, the number of cases opened, cases closed, cases referred for prosecution, arrests, charges, indictments, convictions, length of sentences, total amount of fines, and total amount of money that is forfeited to the United States. That is the standard measure of success. You know it better than I because you have to vote on the budget of federal law enforcement agencies. The problem with that is we are measuring outputs, not outcomes.

We are measuring what is used with the dollars Congress gives to the agency and what the agents actually do with that. But we are not measuring what affect it has had on the communities or on the rate of commission of crimes in any particular area or in any particular field. That creates a problem. Agencies need to justify past budget appropriations and certainly have to justify even more future ones. Unless they can use statistics to make that case out, what you will see, unfortunately, are tragedies like this happen, because a statistic in an important case on a piece of paper shows up to be just as big a case as a small case, which means you can make three small cases and get three credits for it even though the cases are, in fact, quite trivial.

Using the criminal law to enforce regulatory procedures, to enforce regulatory schemes, inevitably leads to that sort of problem, in part, because the average person doesn’t know what every regulation is out there. Most people don’t know what the code of federal regulations is, or where the federal register is to find it. And that’s not just me talking, that’s former Supreme Court Justice, Lewis Powell said that in an opinion for the court. If they don’t know what the law is, they can’t comply with it. And even if they make a mistake, it is oftentimes far better to use civil or administrative mechanisms than criminal to go after someone who has broken such a rule.

The criminal justice system has a powerful effect on the society. I’ve been involved in the criminal justice system for most of my career, and getting arrested, getting charged, going through trial has an enormous effect. It should be reserved for the most serious crimes people can commit, not the sort of ones that were at issue in the Blanding tragedy.

See the full hearing archive here

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