Were US Attorneys purged also in part because they resisted Bush Administration pressure to federalize law enforcement?
The Project Safe Neighborhoods (PSN)report1 prepared by top officials at the Department of Justice appears to be the "performance review" upon which the firing of at least one of the U.S. Attorneys -- Carol Lam -- was supposedly based. For some reason, all of the other districts in the review have been redacted. Oddly, circumstances suggest that at least one U.S. Attorney, David Iglesias, may have received a glowing PSN review in the report.
Iglesias was mentioned in a March 18, 2004 e-mail by Kyle Sampson as someone having an outstanding enough performance to be considered as Director of the Executive Office of the U.S. Attorneys, a top Department of Justice (DOJ) post,2 and, another Sampson email dated April 29, 2004 saw Iglesias as meriting 10 visits from the Attorney General Gonzales himself3 which, as the report makes clear, is an indication that of outstanding performance -- such performers are those who merit Attorney General visits.4 (Interestingly, the report also commends "resigned" U.S. Attorney Margaret Chiara for consistently high rates of federal prosecutions of gun crimes).5
It may be that the final list of attorneys to be fired resulted from the confluence of two streams of thought. The documents made available by the House Judiciary Committee -- including the PSN report -- indicate that the DOJ appears to be motivated to federalize law enforcement under its own auspices.
The documents suggest that those U.S. Attorneys who furthered the cause were to be rewarded. Those who hindered it were to be removed. Additionally, the White House itself appears through an examination of the recently released emails to have been primarily motivated by politics: Who was loyal to Bush, prosecuting enemies while overlooking the activities of friends? And who stood in the way of partisan political progress?
Stepping back, it appears that the Project Safe Neighborhoods was a strategy for increasing federal influence over local law enforcement. As such, an examination of the PSN provides a glimpse into the Bush Administration's benchmarks for loyalaty.
Project Safe Neighborhoods seems to be an effort by the DOJ to screen firearms cases for those that could be tried in federal court, regardless of severity of crime or other objective standards. Once such cases are identified, they are actually prosecuted where the DOJ seeks sentences upwardly enhanced from state maximums.It is accompanied by media efforts to publicize increased rates of prosecution, increased convictions, and increased sentences for gun crimes.
However, the PSN ran into two formidable challenges:
- (1) the Blakely v. Washington case (2004), in which the U.S. Supreme Court held that in jury trials, judges cannot enhance sentences beyond maximums for the jury verdict6; and
- (2) Congress eliminated funding for PSN in 2005.
(It is worth noting that, in the testimony on the cessation of funding to PSN, no evidence is provided that the strategy actually decreases violent crime in communities; outcomes are again measured solely by rates of federally prosecuted gun crimes.)7
Oddly enough, in Blakely v. Washington, it was the ultra-conservative Scalia who wrote the majority opinion upholding the primacy of the jury while the more moderate justices, O'Connor and Breyer, wrote the dissenting opinion supporting the "enhancement of sentences." Also interesting, though predictable from a libertarian perspective, is the opposition to PSN from VDARE, a far right wing anti-immigration organization associated with thinkers such as Pat Buchanan and former Forbes editor, Peter Brimelow. VDARE strongly opposes PSN as an effort to extend the authority and enforcement power of federal government at the expense of states.8
As underscored by the VDARE' s objection, the DOJ agenda represents a sharp departure from traditional conservative thought in which states' rights are paramount, and strong federal enforcement authority is decried. And, in understanding the O'Connor and Breyer dissents, the push to federalize law enforcement may have begun as an effort to infiltrate and incarcerate right wing paramilitary organizations in the Clinton years. Ruby Ridge and Waco, both of which were instigated by Janet Reno under Clinton, were attacks on communities that vehemently opposed strong federal enforcement powers. The two initiatives became the focus of invective by the right wing press. And Timothy McVeigh claimed that he planted his bomb in Oklahoma City as revenge for the attack on Ruby Ridge.9 9 The DOJ effort to extend its influence is, in essence, a push for Big Government and it is an effort that pre-dates the current administration.
Federal Prosecutions Fail to Impact Crime Rates
The COPS Office was created as a result of the Violent Crime Control and Law Enforcement Act of 1994. As a component of the Justice Department, the mission of the COPS Office is to advance community policing in jurisdictions of all sizes across the country. Community policing represents a shift from more traditional law enforcement in that it focuses on prevention of crime and the fear of crime on a very local basis.
While the COPS program is still under the DOJ, the funding for it has moved to a "grant process" under President Bush's Faith-based Initiatives. Under the old, Clinton COPS initiative, the federal government paid for additional enforcement officers to be hired by local governments. These officers helped further the cause of community-based policing by assisting local police departments to open dialogues with their communities to better meet local needs. Often, initiatives included helping communities remove crack houses, grafitti and other signs of blight as well as preventing violent crimes from occurring. But with PSN, the federal government can place Alcohol Tobacco Firearms (ATF) officers within local departments to better ensure that local departments will further the federal agenda by increasing rates of federalization of gun crime cases.
As Acting Associate Attorney General William Mercer writes in his opinion on Blakely v. Washington, extraordinarily stiff federal sentencing guidelines are necessary because locking up more people for longer durations will decrease the crime rate. Using the "deterrent logic" , Mercer states that the DOJ must strive to prosecute crimes in federal courts, even though the crimes t would not traditionally be considered federal crimes. Mercer also recommends that U.S. Attorneys should always seek upward enhancements of sentences beyond the state maximum, complicating the case if necessary. He is attempting to set precedents to federalize law enforcement. Finally, Mercer states concern in his opinion that the Blakely v. Washington decision will hinder DOJ efforts in this direction.10
The PSN report claims to be concerned primarily about "outcomes." Put into scientific terms, "outcomes" would refer to a decrease in rates of violent crime and gun crime -- the stated objective of the program. Yet, the report states flatly, that crime rate data was not collected in all districts.11 Indeed, there is no systematic effort made to link increases in federal prosecution of gun crime to a decrease in crime rates. In fact, crime rates are consistently ignored in the performance review if they are inconvenient. And curiously, in more than half of the districts where gun or violent crime rates are cited, crime rates decrease despite a decrease in federal prosecutions for gun crimes by U. S. Attorneys. There appears to be no actual correspondence at all between federal prosecutions for gun crimes and decreasing crime rates.
Carol Lam is the only "underperforming" U.S. Attorney who is identified in the report despite the fact that in percentages of gun crimes that are prosecuted federally, seven districts rank lower than the her Southern District of California (SDA). The PSN report criticizes Lam for resisting efforts to federalize gun crime and is singled out because, even while other U.S. Attorneys failed to increase federal prosecutions for gun crimes, she was the only one who had been in her position since 2002, longer than the others. Explaining her district's agenda, in a series of emails and memos among Senator Dianne Feinstein, William Moschella and Carol Lam regarding immigration, Lam explains that she is prosecuting the most violent immigration offenders first in order to make the streets safer.12
The PSN report cites a 23% decrease in violent crime in San Diego which would seem to validate her strategy. So obviously the issue at stake for the Bush Administration does not appear to be public safety. Instead, it appears to be Lam's failure to assist the DOJ to obtain funding from Congress for PSN.13 (The report cites several other U.S. Attorneys for the same shortcoming.)
Several other districts are also cited as "under-performers" despite decreases in violent crime rates:
One sported a decrease of 50.8% in its most notorious community, the steepest decrease in violent crime reported in any district. That particular U.S. Attorney deliberately chose to target individuals with a history of chronic violent offenses instead of screening offenses for those that might be made into federal cases. Although the U.S. Attorney in charge was considered an under- performer, this district was held up as a success (despite the drop in federal prosecutions of gun crimes) because it conducted a media campaign that attributed its drop in violent crime to PSN.14
Still another U.S. Attorney was cited for a decrease in the federal prosecution of gun crimes although there was a decrease of 29% in violent crime in the district.15
A March 10, 2004 e-mail from Guy Lewis, director of the Executive Office of United State Attorney (EOUSA), to Kyle Sampson quotes the U.S. Attorney in Guam as defending his "underperformance" (i.e. his failure to try gun crimes in federal court). Lewis paraphrases the U.S. Attorney's defense as an explanation that there are very few guns or gun crimes in Guam. The U.S. Attorney uses a domestic violence statute to attempt to try gun cases federally, but is again stymied by a lack of guns in Guam. The paraphrase is notable because if the true benchmark were neighborhood safety, then the DOJ would be looking to Guam as a shining example of success rather than explaining away its "underperformance."16
The report cites opposition from the Mayor of Wilmington, Delaware, (the city was redacted but is easy enough to identify)17 who argued that increases in social services will have a greater long-term impact on crime rates than will law enforcement. He created Wilmington's HOPE commission to address the high crime rates. The city experienced a significant drop in violent crime despite a decrease in federal prosecution of gun crime.18
Another redacted district that appears to be Washington, DC (they forgot to redact the initials in their discussion of crime rates) experienced a decrease in federal prosecutions of gun crimes over a two-year period. They reported a decrease in homicides over the same two year period along with the lowest number of homicides in 20 years. The reason given for DC's success is that because DC already has a good set of sentencing guidelines, the U.S.Attorney is able to focus on convicting repeat violent offenders.19
To summarize, the actual outcome data in the report seems to indicate that districts lowered crime rates by targeting chronic violent offenders for prosecution, the strategy Carol Lam employed, as opposed to pursuing the DOJ priority of arbitrary federalization of gun crimes.
By recognizing the DOJ's this strategy of federalizing state crimes and upwardly enhancing penalties beyond state maximums, one understands Northern California DistrictU. S. Attorney Kevin Ryan's prosecution of independent journalist Josh Wolf. Wolf was imprisoned for refusing to turn over video he shot of a demonstration in which the tail light of a police car was vandalized. In order to invoke the Patriot Act, which allows prosecutors to compel journalists to produce video in cases involving arson, Ryan claimed the police car had been set ablaze. Josh's video is posted on his website. He is being held for not turning over the outtakes. The office of the U.S. Attorney in northern California continues to claim the case is federal because the police car was purchased through a federal grant. Thus, despite the fact that no arson actually took place, and despite the fact that Wolf is protected by a state shield law, he has been incarcerated in a federal penitentiary longer than any other journalist in the United States.20
1 Part 11-1, page 19-53
2Part 7-1 page 22
3Part 7-1 page 22-27
4 Part 11-1, page 19-53
5 Part 11-1, page 19-53
6 Supreme Court Opinion; Vera Publication; Wikipedia-Blakely vs Washington
7Senate Sessions Record;
8VDARE; Wikepedia - VDARE
9National Reveiw; Center for Studies on New Religions - Branch Davidian
10The Case of the Absentee Attorney, William Mercer, Montana and Senate Judiciary Testimony
11 Part 11-1, page 19-53
12Part 1-1 page 43-49, Part 10, page 44
13 Part 11-1, page 19-53
14 Part 11-1, page 19-53
15 Part 11-1, page 19-53
16Part 11-1, page 38-39
17Wilmington Hope Commission
18 Part 11-1, page 19-53
19 Part 11-1, page 19-53
About the Author: The Fat Lady Sings is an ePluribus Media researcher, writer and community organizer
ePluribus Media Researchers, Contributors, Fact Checkers & Staff Writers: Roxy, Avahome, GreyHawk, intranets, luaptifer, cho and standingup