PARTNERS IN CRIME:
FEDERAL CRIME CONTROL POLICY AND THE STATES, 1894 – 1938
G. Jack Benge, Jr.
A Dissertation Submitted to the Graduate College of Bowling Green State University in partial fulfillment of the requirements for the degree of Doctor of Philosophy
December 2006
Committee:
Judith Sealander, Advisor
Scott Highhouse Graduate Faculty Representative
Gary R. Hess
Donald G. Neiman
ii
ABSTRACT
Judith Sealander, Advisor
The dramatic expansion of federal criminal law jurisdiction and policing
responsibilities in recent times has raised questions regarding the historical origins of
these developments and their impact upon the continuing efficacy of the nation’s federal
system of government. This dissertation examines, within the context of federal criminal
law enforcement and the evolving nature of crime, those social, economic, and legal
forces and events that played a critical role in the growth of the states’ police powers
and made federal collaboration an increasingly important factor in the suppression of
crime.
Since the founding of this nation, federal anti-crime legislation, which tended to
be reactionary in its formulation, inconsistent in its development, and supplemental by
design, implicitly embodied a policy that forbade the impairment of the powers of the
states. This orientation remained a fundamental aspect of federal criminal jurisdiction until well after the New Deal, the central point of this thesis, and did not begin to change until the latter half of the century when the nation’s doctrinal ties to federalism and its faith in the importance of local police powers in the constitutional balance that defined the nation’s political structure were substantially weakened.
The practices by which federal crime suppression policies were implemented, a
factor that underscored the broad range of policing contexts with which the federal
government came into contact, were used in this study as the primary means of
documenting the tensions that arose between the nation’s federalist principles and
those national experiences that encouraged a more bureaucratic and coordinated
response to crime and the threat of disorder. This literature, supplemented by iii secondary source material, seriously questions whether federal criminal law could ever meet the foundational requirements or offer the breadth of vision that characterize those local and state systems through which justice historically has been dispensed.
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DEDICATION
This dissertation is dedicated to the memory of my Mother Olga, who had long
hoped that I would someday complete just such a doctoral program, but who did not live long enough to see me fulfill her wish, and to my wife Laura without whose understanding, encouragement, and support I would not have been able to achieve this goal.
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ACKNOWLEDGEMENTS
I feel especially grateful to my adviser and mentor, Dr. Judith Sealander, who in
so many ways both large and small made my labors easier, providing me with my first
real exposure to the historian’s tradecraft and showing me that a good teacher is one
who sincerely believes in the significance of the subject he teaches. I thank the
members of my dissertation committee, Drs. Gary Hess, Don Nieman, and Scott
Highhouse, all of whom performed this task without complaint even after I had given
them good cause to do so.
The list of family members to whom I am also indebted includes my four children,
Rachelle and her Chip and James and his Ann Kristin, who were always so buoyant in
their enthusiasm, supportive in their advice, and patient with the turtle-like pace that seemed to characterize my work on “the project,” my brother Thomas who remained my champion and “defender’ throughout, and my parents, Jack and Grace, whose relief upon being informed of the completion of this work was not only audible, but unmatched in its volume. A big thank you to a little lady, my granddaughter Lauren, who at the age of three climbed up on my lap to offer her “help” in drafting my first chapter and has since become the reader and museum habitué’ her grandfather has always wanted her to be. Finally, I cannot say enough about the contributions made by my wife Laura who encouraged me to take this step, moved us across the nation to make it possible, and supported me through the most difficult of times, emotionally and financially, during my decade-long life as a graduate student. All that follows is as much the result of her efforts as those of my own.
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TABLE OF CONTENTS
Page
Introduction ...... 1
PART I: A NEW AND COMPOSITE NATION
Chapter 1: The Federalist Framework ...... 19
Chapter 2: The Great Divide ...... 63
Chapter 3: In Search of a More Ordered Liberty ...... 103
PART II: EXTENDING A HAND: THE FORMATIVE YEARS OF FEDERAL LAW ENFORCEMENT
Chapter 4: A Policy Without Teeth Is No Policy ...... 138
Chapter 5: Stretching the Meaning of Mutual Assistance . . 188
Chapter 6: The Menace In Clear View ...... 246
PART III: THE RESILIENCY OF FEDERALISM
Chapter 7: Crisis and Realignment ...... 304
Chapter 8: A Breakdown of Order ...... 346
Chapter 9: Struggling for Balance ...... 393
Chapter 10: The Confidence Men ...... 449
Conclusion ...... 495
Bibliography ...... 510
INTRODUCTION
It is because of America’s strong tradition of local autonomy that the federal government has not become extensively involved in local law enforcement. President’s Commission on Law Enforcement And Administration of Justice, 19671
In 1934, the 73rd Congress enacted a series of crime-fighting proposals
that dramatically extended the reach of federal criminal jurisdiction. Worn thin by
a decade or more of lawlessness, so the story goes, and increasingly dissatisfied
with the inability of the nation's local law enforcement agencies to deter crime,
Congress was forced to act in the face of its constituents’ demands for federal
police action. The public outcry over rising crime rates had become too
impassioned and the expectation of relief from the “depravities” of criminals and
corrupt officials too great to safely ignore. Setting aside whatever qualms it may
have had regarding what was clearly a radical departure from the nation’s
federalist traditions, Congress, with President Franklin D. Roosevelt’s strong encouragement, authorized an all out assault upon this epidemic of unchecked criminality and violence. In an instant, federal law enforcement officials were
transformed into some of the most powerful instruments of the state. "It was," one historian would later write, "the beginning of a revolution in federal law enforcement,"2 and he was far from alone in expressing this opinion.3 Even
among its contemporaries, Congress' adoption of the Roosevelt administration's
1 President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police (Washington, D.C.: Government Printing Office, 1969), 8. 2 Fredericks. Calhoun, The Lawmen: United States Marshals and Their Deputies, 1789- 1989 (Washington, D.C.: Smithsonian Institution Press, 1989), 244. 3 Don Whitehead, The FBI Story: A Report to the People (New York: Random House, 1956); Stanford J. Ungar, FBI: An Uncensored Look Behind the Walls (Boston; Toronto: Little, Brown and Co., 1975), 73; Curt Gentry, J. Edgar Hoover: The Man and His Secrets (New York: W.W, Norton and Company, 1991), 169. 2
anti-crime program was seen as a ground breaking event in history of federal
criminal justice and national crime policy. Among those who would be most closely identified with the enactment of President Roosevelt's legislative anti- crime program was Attorney General Homer Cummings. Eager to demonstrate the potential and power of a growing array of federal enforcement resources and convinced that the exceptional challenge with which it was confronted required a more innovative use of federal crime-fighting capabilities, the Attorney General loudly heralded the enactment of the "president's crime bills" as the arrival of a new day of reckoning. 'We are now," he proclaimed, "engaged in a war that threatens our country -- a war with the organized forces of crime." For those of his countrymen who were listening - and many were - the use of a war-metaphor to justify the federal government's increased involvement in an area traditionally reserved to the states seemed entirely appropriate. In an atmosphere steeped with a sense of impending crisis, the taking of extraordinary steps seemed entirely justifiable.
Implicit in this portrayal of events, however, is a flawed assumption regarding the growth of federal power and the extension of federal jurisdiction over conduct traditionally policed under state law, a misunderstanding regarding the historical origins of the government’s present day role in the suppression of crime. Underlying this assumption is a portrayal of events that casts the federal government in the role of a rescuer, its intervention made necessary and especially urgent by conditions that had successfully resisted the best efforts of
local officials to maintain law and order during the most desperate of times, the 3
Great Depression. Finding reinforcement in the written and filmed accounts that trace the development and recount the exploits of the government’s principal enforcement agencies, this view of federal enforcement history links a series of events that “commences” with the New Deal, the proverbial tipping point in federal-state relations, continues through the subsequent “displacement” of the states from their customary roles as the principal guardians of law and order, to a place of preeminence in the field of law enforcement. While acknowledging the nation’s strong doctrinal ties to federalism and its faith in the importance of local police powers in the constitutional balance defining the nation’s political structure, this version of events makes the most of what it describes as a wholly unexpected and momentous break with the nation’s federalist tradition and, in the process, more dramatically depicts the direness of the threat with which the federal government was forced to contend during the early throes of the
Depression. In an era when the very existence of gangs of organized criminals had become an open challenge to the authority of local and state officials whose resources had been drained in their pursuit, with law and order hanging in the balance, federal intervention simply became the most practical and politically expedient alternative available. There is among us all a natural tendency to reorder the images of history to ensure that they remain consistent with the meanings we are inclined to give them, a reflection more of our own experience and the need we have to explain it, coherently and repeatedly. These attempts, however, to integrate those federal crime policy initiatives that are the product of more modern times into the political and criminal justice frameworks of the 1930s 4
and earlier, misconstrue the true nature and overlook the actual sources of
federal crime policy in the decades immediately preceding the Second World
War. In essence, they ignore the larger historical framework from within which early federal policy concerning crime suppression was actually derived and downplay the effects of the social, economic, and legal trends that both shaped this framework, conceptually and politically, and crafted, in response to significant changes in the state’s enforcement responsibilities, a very limited and secondary role for the national government to play in controlling crime.
For much of the nation’s history, the federal government’s role in suppressing crime had been a very minor one, overshadowed by that of the states and local governments who bore the principal responsibility for defining and punishing criminal behavior. In more recent times, however, largely as a result of rampant drug use and organized crime, the federal government’s police powers have been extended into areas of enforcement that were once the exclusive province of the states and their localities, a trend which, in the decades of the 1980s and 1990s, resulted in increased federal influence in state crime legislation and local enforcement practices. For those who view this development with concern, such trends raise serious questions concerning the propriety and costs of federal intervention. Increased federal involvement in local law enforcement activity has clearly reduced the autonomy that the states had once enjoyed in tailoring their responses to local crime control issues and supporting innovation in the criminal justice field. Federal anti-crime initiatives attract considerable attention, draw votes, and provide financial and other 5
incentives to the affected federal bureaucracies, but because they reflect
uniquely national concerns and federal enforcement capabilities, they rarely
address the underlying causes of the crime problems that continue to pressure
the states and their political subdivisions. To a far greater degree than ever before, the federal government is in a position to influence, even prevent, local or
state experimentation with criminal justice policies that do not conform to federal
guidelines or policy objectives. The states are, as a consequence, left fairly much on their own to resolve difficult issues for which no other forum for such purpose exists than that dominated, financially and policy-wise, by a national government that remains, in an ironic twist on the old federalist theme, relatively unconcerned, local systems of criminal justice administration.
Present day concerns over the "federalization" of crime are, in reality, little
more than an argument over the changing nature of crime and criminal
jurisdiction. What has become obvious is that traditional notions regarding the
proper boundaries of federal police power, those that remained intact and
prevalent throughout the period here under examination, no longer comprise the
framework within which the appropriate use of federal power can be so readily
determined. Following World War II, but, as I hope to demonstrate, certainly not
before, at least not in criminal justice matters, federalism became one among a
growing number of factors that were employed to determine the best uses and
proper limits of federal power. If, as it appears, the New Deal resulted in the
expansion of government services and programs, it is evident that the states
were greatly aided by this process and that their role was “further legitimated” by 6
the resulting changes in the “larger political economy.”4 Federal programs,
sanctioned and funded under a host of emergency legislative enactments,
stimulated and became an important part of local economies and introduced a
new era where the restraints imposed upon the federal government within the
nation’s federalist structure were substantially relaxed and became increasingly a
question to be decided in the political arena.
Given the evidence assembled here in connection with the restraining
influences of especially strong constitutional, historical, and political traditions
upon the use of federal police power, how, we must ask, was the enactment of
the "Roosevelt anti-crime bills" so easily accomplished? I believe that the
Roosevelt administration’s anti-crime program represented something other than
a radical departure from the principles underlying the nation's federal system. If
anything, this examination of the evolution of federal crime policy, its fundamental
and essentially unchanging precepts, and the political and legislative response of
the Roosevelt administration to alarming increases in the incidence of crime
suggests that the most important social, political and intellectual sources for the
federal government’s presence in ordinary policing are far more recent than the
New Deal.5 That this question arises at all is most likely attributable to three
factors, each of which must be considered in its proper historical context: first,
the resiliency of the federalist structure of American government which endowed
4 William G. Staples, Castles of Our Conscience: Social Control and the American State, 1800- 1985 (New Brunswick, New Jersey: Rutgers University Press, 1990), 83-84. 5 "... from the New Deal forward, Congress has continued inexorably down the road to federalized crime." Kathleen F. Brickey, "The Commerce Clause and Federative Crime: A Tale of Two Thieves," Edited by James A. Strazzella, The Federal Rule of Criminal Law (Thousand Oaks, CA: Sage Periodicals Press, 1996), 28; First published in The Annals of the American Academy of Political and Social Science (January 1996); Ungar, FBI, 72-77; See Arthur C. Millspaugh, Crime Control by the National Government (Washington: The Brookings Institution, 1937). 7 it with the capacity to resolve or accommodate change despite the tensions it produced; second, changes in the public's perception of crime and in its expectations regarding the proper administration of criminal justice; and, finally, the bureaucratization and growing professionalism of the nation’s local police organizations, a development that profoundly influenced the way in which the nation's fragmented and multi-tiered law enforcement system achieved a sense of common purpose while embracing an image of policing that more clearly defined its functions and, within a federalist structure that recognized both the local and national implications of effective aw enforcement, apportioned its responsibilities.
This dissertation, then, is not so much a history as an exercise in the use of history to frame and to explain the evolution of federal crime policy within the political and social context of the period under study and to provide greater insight into the nature of the relationship between the states and the federal government that helped to give it form and direction. Toward that end, this work has been divided into three parts, chronologically ordered and emphasizing only those aspects of federal crime policy associated with policing and deterrence, functions in which both the states and the federal government were engaged, and the cooperative arrangements that evolved in response to the challenges posed by the object of their mutual concern, crime and criminals.
Part I
It is clear now that even as the states’ and the federal government's respective enforcement agencies were responsive to entirely different incentives 8 and considerations and thus inclined to use methods that reflected radically different orientations and operational priorities, they would become, whether for strictly institutional reasons or from sheer necessity, increasingly involved with one another, a perfectly natural result of the interlocking tendencies of the crime fighting process. The early arrangements by which these cooperative ventures were organized were often ad hoc and informal in nature, characteristically brief in duration, and limited in purpose and scope.6 With few exceptions, however, such cooperative ventures were essential to the implementation of federal law enforcement policy, a state of affairs prompted largely by the federalist structure of American government and the tensions created by its constitutionally defined elements, including the Tenth Amendment, which implicitly embodied a policy against the impairment of the states’ police powers.
Efforts to enforce federal criminal law had long been burdened by the sporadic nature and inconsistent pattern of its development. Responsibility for the enforcement of specific federal statutes was unevenly and not always coherently distributed among the various existing federal departments with little regard for the resources that would be necessary for its application. Such practices on the part of the federal legislative branch tended to enhance the government’s relationship with local law enforcement officials whose larger numbers and powers of arrest were critical to the success of most federal
6 One of the more celebrated, though highly irregular, examples of the importance of local law enforcement in the implementation of federal policy occurred along the Texas-Mexican border in 1911 where, through the direct intervention of then President William H. Taft, the number of Texas Rangers was increased through an infusion of federal funds in order to tighten control over the border and to improve efforts to enforce the nation's neutrality laws. Linda B. Hall and Don M. Coerver, Revolution on the Border: The United Slates and Mexico, 1910-1Q20 (Albuquerque: University of New Mexico Press, 1988), 21. 9
enforcement policies. But there was another, equally important aspect to this
arrangement, one which closely conformed to prevailing notions of federalism
and a near absolute faith in the necessity of distinguishing national from local
power. For reasons that likely arose from the concerns and experiences of the
Republic's founding generation, great care had been taken to ensure that the
means to protect personal liberty and to moderate the power of government
would remain generally accessible, both directly through the process of self-
determination and structurally as a foundational feature of the nation's federalist
system. Such fears, regarding the erosion of the principles by which national
power can be distinguished from local, became a staple of American political
culture. In keeping with that tradition, any attempt to consolidate or expand
federal authority was regarded with deep suspicion and hotly opposed on the
ground that the expansion of federal power risked undermining the strength of
local democratic processes.7 There was reason for concern because the
responsibility for enforcement involved a system of law that acknowledged and
conformed to local standards and characteristics. Local officials were perceived
as being not only more responsive to local problems and values, but also more
accountable for their decisions, policies, and actions.8 Federal influence and
direction, on the other hand, however inclusive or cooperative in its undertaking,
represented a level of power, interests, and special concerns that were not only
detached from these conditions, but equally capable of disrupting them, that is, of
7 Gregory W. O’Reilly and Robert Drizin, “United States v. Lopez: Reinvigorating the Federal Balance by Maintaining the States’ Role as the ‘Immediate and Visible Guardians’ of Security,” Journal of Legislation (1996), 5, 8. 8 Malcolm M. Feeley and Austin D. Sarat, The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration (Minneapolis: University of Minnesota Press, 1980), 39. 10
seriously weakening the local ties or community focus characteristic of state
legislatures, courts, and police.9 To the extent that these consequences could
weaken the authority of the states, they also threatened to diminish the
restraining influence of those constitutionally defined limitations that were applicable to the powers of the federal government, with serious repercussions for the nation's constitutional structure.10
As a consequence, the primacy of federalism remained the fundamental
principle of all subsequent political and governmental development in the United
States. Imbedded in this federalist system was the notion that control over
criminal law and the authority to maintain public order would be an important
factor in preserving a division of power between the states and the central
government, in distinguishing between matters of strictly federal concern from
those clearly falling within the discretion of the states and their localities.11 The diffusion of governmental power, then, remained an important feature as did the near complete authority with which local communities could act to maintain a peaceful community and to fashion the means by which such order could be assured. As a result, and for the better part of its history, American law enforcement remained especially diverse in its jurisdictional responsibilities, methods of organization, procedure, and policing practices and orientation. This
9Brickey, "The Commerce Clause and Federative Crime: A Tale of Two Thieves," 543. 10 By way of illustration, in 1981, delegations from the National Association of Attorneys General and the National Conference of State Legislatures appeared before Congress to obtain its assurances, given the anti-crime legislation it was then considering, regarding the primacy of the states' responsibility for the suppression of local criminal activity and the federal government's continuing reliance upon state and local leadership for the implementation of anti-crime programs. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings Law Journal (April 1995), 1165, fn. 170. 11 12 Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, And the Polity, 1880-1920 (Chapel Hill: The University of North Carolina, 1995), 188-189. 11
pattern of development reflected a geographically-based concept of jurisdiction -
by definition, the area subject to the assertion of governmental authority or
regulation. The addition of new states and the limited range of economic activity and existing transportation networks reinforced this perception.
During the latter half of the nineteenth century and the early years of the twentieth, the growing complexity and size of American society began to challenge this traditional framework and the dominance of those intricate networks of cultural and voluntary controls and standards that had been so vital
to the maintenance of order and peace in the nation’s communities. Modern life,
as it began to emerge, could not be contained within clearly defined territorial
limits, and as such, it increasingly raised concerns regarding the capabilities and,
to a degree, the very legitimacy of the government's efforts to exercise some
control over its unfolding. Between 1880 and 1915, these concerns, exacerbated by social and economic tensions, technological advances, growing numbers of
arriving immigrants, and an altered sense of community, added entirely new
dimensions to the way in which jurisdictional boundaries could be legally treated.
The quickening pace of interstate commerce resulted in the enactment of many
new federal regulatory crimes further complicated this process. The nation's
federalist structure struggled to accommodate these changes, in part by
improvising the means by which different levels of government could cooperate
in achieving some mutually agreeable end without jeopardizing the underling
principles of federalism. Not only did this arrangement acknowledge the
continuing vitality of the concept of local autonomy, but it found in such diversity 12
qualities of "comprehensiveness and [political] efficiency" that were, at the very
least, reassuring symbols of the stability of American government.12
Part II
From the outset, federal and state collaboration had provided an
important means by which different levels of governments could deal
successfully with problems that, whether relating to the maintenance of public
order or not, were increasingly viewed as meriting their attention. This capacity
for cooperation and accommodation was, in fact, an essential feature of a
constitutional structure that permitted the "states and their constituent localities"
not only 'to make demands on the national government without abdicating their
own roles or claims of sovereignty,"13 but also to more easily share certain
responsibilities, "each in its own way", while simultaneously "preserving the
system's balance through [a] sharing process rather than through separation . . .
."'14 Though prevented from exploiting such opportunities for collaboration by the
applied doctrine of dual federalism, exceptions were made in connection with
measures designed to preserve some measure of social control and lines of separation were redrawn or sufficiently obscured to allow for increased
coordination.
Crime had become an evolving concept in it own right, registering
changes that challenged the limited focus and capabilities of local law
enforcement officials to detect and control its growth and further exacerbating the
problem by its disregard for jurisdictional lines that were still regarded, legally and
12 Ibid., 328. 13 Ibid., 324. 14 Ibid., 337. 13
symbolically, as an essential ingredient in the ongoing vitality of a federal system
that accommodated the nation’s need for both unity and diversity. Local law
enforcement officials, representing as they did the nation's principle means of
maintaining order, were, however, left with no alternative than to call upon the
government for assistance, a development that would seriously stretch the
federal government's modest enforcement resources, but never resolve concerns regarding the propriety of the government’s crime-fighting ambitions. Beginning in the 1890s and continuing through the early part of the 1930s, this body of federal law was developed with an important objective in mind, to preserve the
efficacy of state and local police power in the face of mounting jurisdictional
challenges. When and wherever it became necessary for the enforcement machinery of these distinct levels of government to cooperate with one another – whether because of the national interests involved or because of the cross-
jurisdictional implications of the activities in question - they did. But on each occasion, the criteria that were used to assess the necessity for collaboration or the extent of federal involvement were strictly guided by federalist principles that
recognized distinct spheres of power.
Part III
The nation’s experience in the 1920s, however, helped to reaffirm important truths regarding the collaborative arrangements that would continue to
influence federal policy for years to come. Changes in the political and social
values and patterns of society had brought forth an entirely new environment for
which traditional policing practices and organization were increasingly ill-suited. 14
From the public's perspective, the solution lay not with the federal government
alone or even primarily, but in the aggressive and concerted action on the part of
all levels of government - local, state, and federal. Growing support for the
extension of federal jurisdiction by no means reflected any disillusionment with a
division of powers believed critical to the national welfare or for the preservation
of national political values, but merely revealed a growing impatience for the
stepped-up enforcement of the law or the policies it was designed to effectuate.15
In the face of such challenges, what mattered were the results and the best means to achieve it, “the system or combination of systems that seemed likely to get the job done best.”16 By means of conferences and commissions, through
regional and national organizations, in scholarly tracts and even in popular
fiction, Americans pondered the state of law enforcement and found solutions to
their enforcement problems in more "modern" methods of combating crime.
These new approaches were more inclined to see police action as a part of a
larger process, a system in which the police, employing new technologies and
managerial innovations, could, in conjunction with the system's other components, prosecutorial and penal, offer a higher level of personal security to which all law-abiding citizens could aspire. The threat of disorder and the changing nature of crime, especially organized crime, had grown sufficiently to encourage the states to join forces, rather than to continue to fend for themselves, in meeting the threat of banditry and corruption. Though never
15 William W. Schwarzer and Russell R. Wheeler, On the Federalization of the Administration of Civil and Criminal Justice, 23 Stetson Law Review 651, 666 (Summer 1994). 16 Daniel J. Elazar, The American Partnership: Intergovernmental Co-operation in the Nineteenth Century United States (Chicago: The University of Chicago Press, 1962), 329-330. 15
intended to, this strategy placed added pressure on local and municipal police
systems to accept the standardizing influences and new coordinative
responsibilities so characteristic of rising state bureaucracies. Nevertheless, a
growing appreciation for the value of forensic sciences and other innovations in
police "science", including new technological innovations in radio communication
and teletype that facilitated the sharing of criminal intelligence, gave momentum
to a wide range of interstate efforts to suppress crime, from facilitating the
apprehension of interstate fugitives to the adoption of model codes or uniform
laws.
Contrary to the manner in which it has been depicted, the political context
within which these changes came about continued to emphasize the fundamental
importance of the jurisdictional boundaries of the governmental entities involved.
The reasons for this were many, among them, the reluctance of police agencies
to risk losing the bureaucratic autonomy that their newly acclaimed
"professionalism" implied; a trend toward the centralization of policymaking in
state government and the growing importance, accelerated during the
Depression, of state funding and direction; and the continuing influence of a
consensus of opinion regarding the appropriate uses of national power in the
field of law enforcement. In the midst of such changes, the realities of police
work would come to dominate the relationship between the federal government
and the states, but the federal structure within which the states and the federal
government attended to their respective duties and which each accepted as a
doctrinal guide remained virtually unchanged. 16
By 1924, issues concerning the proper role of federal law enforcement and the reputation and integrity of its personnel had become matters of national
concern and the subject of a politically well-placed reform interest. In an era that
signaled a retreat from the emergency controls and expansive regulatory
environment of war-time America, the federal government struggled to advance
the cause of concurrent jurisdiction against a growing tide of disillusionment with
the enforcement mandate imposed upon it by the adoption of the Eighteenth
Amendment to the Constitution. In the absence of a strong consensus among
state and local governments regarding whether the problem of prohibition was of
such nature as to merit a broad social response or even a higher priority in
enforcement, the collaborative arrangements upon which the federal government
had long depended proved to be far more fragile than expected. Federal law
enforcement agencies simply could not bring themselves to dispense with their distinctive orientation toward law enforcement and the institutional values unique
to the history and development of each, nor would they receive any help in doing
so. By 1930, unable to operate effectively in the urban centers that had become
the testing ground of the Volstead Act and tacitly recognizing that success could
only be achieved through state and local intervention, the federal agencies
involved in prohibition enforcement began to concentrate their resources in
operational areas that were better suited to their particular enforcement style and
areas of specialization. Improved border surveillance and interdiction programs,
a tightening of regulatory controls over the illicit distribution of lawfully
manufactured alcohol and narcotics, greater direction over the government's 17
prosecutorial policies, and the revitalization of a moribund federal prison system -
essentially a process of retrenchment - would become the watchwords of a new
era in federal enforcement.
The New Deal's reaction to this crisis in law enforcement was little
different from its response to the much larger challenges with which it was
confronted in 1933. The Depression, which, ironically, provided local police
services in many parts of the nation with an incentive to implement re-
organizational strategies and other cost-saving measures long deferred, was
understandably a concern of the first order. When the Roosevelt administration
did finally act, the steps it took were entirely consistent with those it had taken to deal with other areas that had been of more vital concern: they neither transgressed upon the jurisdictional responsibilities of the states, nor did they infringe upon the police power of local governments. The Administration waited more than a year to embark upon its much publicized anti-crime program, which, when it was more aggressively prosecuted, drew considerable attention to the
Department of Justice, enhanced its role as a model crime-fighting establishment, standard setter, and leader in a nationwide effort to defeat a frightening and, to some degree, anticipated upsurge in crime. But a closer examination of the events surrounding its much touted anti-crime crusade, its
"war on crime", suggests that the Justice Department's principal concerns were principally two: first, to restore the primacy of the old collaborative relationship
(so badly damaged during prohibition) by rejecting any thought of a national police force and attempting, instead, to redefine a more centralized and 18 bureaucratically coordinated effort in terms of its methods and goals, and, second, to raise the public's confidence in and stimulate local action and support for a united effort to combat crime, the latter by capturing the popular imagination through a much publicized campaign against corruption and banditry, a "war" of a different kind.
19
PART I
A NEW AND COMPOSITE NATION
Chapter 1
THE FEDERALIST FRAMEWORK
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Tenth Amendment to the United States Constitution
At a time when this nation consisted of little more than a series of colonial ventures, the maintenance of public order was perceived as a strictly local affair.
The responsibility for ensuring peace within the community fell upon the shoulders of ordinary citizens who shared similar beliefs and values and who could be relied upon to enforce those societal norms that were most closely associated with the prevailing moral and ethical climate. In the early 19th
Century, however, this system of policing, increasingly challenged by the social, demographic, and economic developments that marked the onset of a new era in the nation’s growth, was replaced, to a great extent, by advances in the development of a formalized process of law and by the appearance, particularly in the nation’s urban centers, of an organized and sustained system of law enforcement. As the demands upon local communities to police themselves grew and became ever more urgent, however, so, too, did their dependence, within the nation’s federalist system, upon the resources, authority, and commitment of higher levels of government. This process, while never entirely free from politics or contention, would eventually result in the institutionalization of law enforcement as a separate and vital function of government and in the 20
introduction of a political and legal framework within which the relationships
among the nation’s various law enforcement systems began to evolve.
In the beginning, however, the responsibility for maintaining order hardly concerned the federal government. Criminal activity was relatively
unsophisticated and largely confined in place. Crime, by definition1, remained a
local phenomenon - local in origin, local in its characteristics, and local in its
effects - and the highly decentralized nature in which the administration of justice
took form as a result reflected this state of affairs. In addition to the realities that
limited then contemporary law enforcement practices and the expectations
extending to it, there were the constraining influences of those basic political values that stressed the virtues of dispersed power and the fundamental importance of local governmental processes as the foundation of individual liberty and self-governance.2 The principles of federalism thus became
instrumental in shaping a political culture that, from its inception, entrusted the
primary responsibility of safeguarding life and property to the state and the local
governments upon whom this task ordinarily fell. Within this new federalist
structure, local and state governments, to whom the power to police society and
“to secure and promote” the welfare of the people belonged under the 10th
Amendment to the new Constitution,3 could freely exercise their authority as the
principal guarantors of the safety and morals of their citizens.
1 This conceptualization of crime would be reflected in one of the most fundamental features of criminal jurisdiction, the prohibition against the trial of anyone charged with an offense committed in some other jurisdiction. 2 Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), 535. 3 Robert E. Cushman, Studies In the Police Power of the National Government, 4 Minnesota U of Law Rev 289, 290 (April 1919). 21
Federalism and Crime Suppression
The essentially local character and perception of policing was imbedded in
the historical experience of the American people. Well before the United States
was founded, criminal behavior was regarded as a strictly local matter, reflecting
peculiarly local concerns and conditions. Under British rule, each of the colonies
was responsible for the development and maintenance of a system of law by
which the preservation of public order could be assured, an expedient that also
allowed for considerable diversity in the development of local governing
institutions. The differences among the resulting compilations of laws and rules
and the practices associated with them would remain virtually unchanged
throughout the ratification of the Constitution and the creation of a federal form of
government. This transformation from a collection of separate and sovereign
political entities to a federal republic resulted, therefore, neither in the
diminishment of the states' inherent authority over criminal law, nor in the
elimination of the widely differing political traditions and social customs that
distinguished one body of state law from another.4
The policing responsibilities and functions of the national government, on the other hand, were far less noticeable in their effect and of relatively little consequence in preserving order within the communities around which the daily lives of the American people revolved. The federal government was not precluded, of course, from penalizing conduct in clear violation of its own laws as long as the authority under which it acted was expressly or exclusively its own.
4 Terrence N. Meassonier, “Neo-Federalism, Popular Sovereignty, and the Criminal Law,” 29 Akron University College of Law Review 549, 555 (Spring 1995). 22
Congress could punish specific offenses. It could enact laws ensuring that the
federal government’s responsibilities would be properly met, and matters over
which it held exclusive jurisdiction - the imposition of taxes and duties and the
regulation of interstate commerce, for example - would remain firmly under its
control.5 Only months after the Constitution became effective, in fact, in July,
1789, Congress used its authority to protect an important source of federal
revenue, establishing criminal sanctions for the evasion of customs duties.6 The following year, it took additional steps to provide for the punishment of other forms of criminal activity that threatened yet other federal interests,7 in particular,
crimes committed on lands held under federal supervision.8 Legislation of this
sort was clearly consistent with the doctrine of enumerated powers - those
responsibilities and corresponding powers that were specifically granted
Congress under the Constitution - and, therefore, unlikely to conflict with the
powers entrusted to the states. But the jurisdictional distinctions among the
different levels of government soon found themselves challenged in ways that
had not been entirely anticipated by the framers of the Constitution.
The successful conclusion of the Revolutionary war and the process of
ratifying the Constitution some several years later fed a nationalistic spirit that
would greatly influence early federal legislation. Under the Federalists control,
Congress adopted policies, including the assumption of the states’ war related
5 Edwin C. Surrency, History of the Federal Courts (New York: Oceana Publications, Inc., 1987), 111. 6 Ibid. 7 Act of April 30, 1790, 1 Stat. L. 112; Martin Conboy, “Federal Criminal Law” In Law, A Century of Progress, 1835-1935, Vol. 1, Edited by Alison Reppy (New York: New York University Press, 1937), 301-302. 8 Surrency, History of the Federal Courts, 112. 23 debt and the chartering of a national bank through which the government could impose currency restrictions, that helped to concentrate greater economic and political power at the national level. Such policies, however, provoked an ever widening debate over their constitutionality, particularly where the means chosen to implement them, in the absence of specific constitutional authorization, could only be inferred from the other powers conferred on the national government.
The controversies that ensued would help to usher in an era of intense partisanship among a people who were becoming increasingly divided over the scope of the federal government's authority, an issue that seemed to have little effect upon the federal judiciary’s contributions toward the development of a truly national government. By means of a series of decisions that began with the landmark case of McCullough v. Maryland,9 the United States Supreme Court worked tirelessly to establish the supremacy of the Union and to defend the primacy of its jurisdictional authority in matters that were at the very crux of federal-state relations. If, however, the Court felt little inclination during the early years of the Republic to exercise greater restraint in the enlargement of its
9 4 Wheat. 316 (1819). In McCulloch, the state of Maryland, struggling with the economic consequences of the Panic of 1818, attempted to counteract the second Bank of the United States’ foreclosures of the many mortgages it held on land in the state by levying a large tax against its Maryland branches. The state defended its action by arguing that Congress, in chartering what had essentially became the nation’s central bank, had acted beyond its constitutional authority. The Supreme Court disagreed, finding that Congress had acted properly because the Constitution, through its “necessary and proper clause,” granted Congress powers in addition to those specifically described in order to ensure that it possessed the means to discharge its responsibilities. Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 46-47. 24
jurisdiction and the extension of federal power, the same could not be said of the
Congress.10
By the 1820s, the continuing territorial expansion of the United States and
the growing controversy over the effects of state restrictions upon commerce in a
newly emerging market economy were placing enormous strains upon the
national government. Congress, finding itself at the center of a major political
realignment that reflected the growth of national political parties, increased
competition for popular support, and the influence of a more broadly based
electoral system, became, in the face of growing regional tensions, increasingly
reticent to expand the government’s authority any further. Forced to
accommodate an electorate that was growing more distrustful of central
government and to defend the policies it had adopted to stimulate economic
growth and investment in the face of growing suspicion that it was benefiting the
few at the expense of the majority, Congress had already begun to adjust to a
new political climate that favored the principles of limited government and non-
interventionism. But there was yet another, equally compelling political reason
for its more moderate approach. One of the government’s principal
achievements had been the acquisition of large acreages of new land, which,
while considered a vital, if not inevitable step in the nation’s development, also
contributed to the factionalism and regional tensions that both Congress and the
executive were laboring to avoid. The conflicts that ensued and which reflected
the nation’s growing absorption with the issue of slavery left the country’s fragile
10 Arthur C. Millspaugh, Crime Control by the National Government (New York: Brookings Institution, 1937. Reprint: New York: Da Capo Press, 1972), 8. 25 political institutions increasingly vulnerable. Equally troubling was the fact that these conflicts threatened to undermine the nation’s still evolving formulations regarding the allocation and balance of power in a multi-tiered system of government. Under such circumstances, even minor acts on the part of the federal government ran the risk of inciting the most rancorous debate or, worse, inviting outright defiance of the national government itself. One such instance was especially notable: in 1820, while Congress debated the conditions under which the territory of Missouri could be admitted to the Union, two men were arrested in Virginia and, despite their claims of immunity under federal law, convicted of selling tickets for a lottery that was neither licensed, nor sanctioned by that state. The lottery issuing the tickets sol, however, had been established by an act of Congress to raise funds to support the improvement of public roads in the District of Columbia. The defendants, the brothers Cohen, challenged their convictions in the Supreme Court, arguing that Virginia’s authority to define and apply criminal law did not surpass the nation’s interest in exercising what was otherwise an appropriate and constitutionally sanctioned power. The Supreme
Court, in deciding the matter, agreed and firmly rejected Virginia’s depiction of itself as an "independent" sovereign state, reasserting as it did so the Court’s own and unique role as the final arbiter in all cases involving the interpretation of the federal Constitution.11 Given the timing of the Court’s decision, the ruling very quickly became yet another point of contention in the nation’s ongoing debate over slavery and state’s rights. In such an atmosphere, almost all legislative proposals carried some potential for controversy, a factor that would
11 6 Wheat. 264 (182); Schwartz, A History of the Supreme Court, 44-45.) 26
significantly contribute to yet another, lasting legacy in the enactment and
enforcement of federal law.
The Earliest Stages of Federal Crime Control: From Deference to Collaboration There were, of course, practical reasons for Congress’ somewhat tepid
approach to the projection of federal power, among the most important being that
the federal government lacked sufficient sources of revenue to provide for all the
measures that Congress might enact. Nor was the central government actually
in possession of the means that would be required to assume any additional
responsibilities. Aside from the Post Office, no administrative apparatus existed
by which purely federal interests could be represented at the level of town and
village or, for that matter, throughout the more rural expanses that lay beyond the
most developed and important communities of any given state. The problem of
enforcing federal law placed yet other pressures upon the national government’s
meager resources: federal courts were few in number12 and not always so
conveniently situated as to make proceedings against those committing
violations of federal law very practical.13 In 1825, Congress, fearing the possible
consequences of a lapse in federal jurisdiction, was finally compelled to address
the relatively weak state of the federal government’s enforcement capabilities
and conflicts in the exercise of federal criminal jurisdiction. The remedy it
adopted, however, proved far from satisfactory and reflected the degree to which
the House membership was divided between those who supported a strong
12 The Judiciary Act of 1789 created thirteen district courts, all in the nation’s principal cities, with but one judge each. There were but three circuit courts to cover the remaining areas of the country’s eastern, middle, and southern regions. 13 Millspaugh, Crime Control by the National Government, 113. 27
national government and those who did not. In providing for the punishment of a range of crimes arising in the territories then under federal control,14 Congress
chose, in effect, to defer to the states in the further development of criminal law,
shifting onto their shoulders much of the burden of its enforcement. Unlike the
Fugitive Slave Act of 1793, which conferred a duty of enforcement upon the
individual states, this new legislation, which imposed no specific responsibilities
upon the states, was intended to encourage the apprehension and facilitate the
trial of persons violating federal law.
Not surprisingly, Congress’ preference for concurrent jurisdiction was
actively resisted by the states, which viewed this legislation as little more than an
attempt to surreptitiously expand federal court jurisdiction, and severely criticized
by the federal courts for both procedural and substantive reasons. Not until the
enactment of the Revised Statutes of 1874, which finally made federal jurisdiction
over all federal offenses exclusive of the state courts, was the national
government’s reliance upon concurrent jurisdiction pared back.15 The scope of
federal jurisdiction would retain this somewhat tenuous character until well after the Civil War. Though hailed as a watershed in the history of federal policing, the immediate post-Civil War exertions of the federal government ultimately failed to achieve their intended objective, the political enfranchisement of the South’s former slaves. Nonetheless, the war and the changes it brought about did provide the setting for an extraordinary expansion of federal power. Secession
had threatened to destroy the nation’s political traditions and its identity as a
14 Act of March 3, 1825, 4 Stat. L. 115. 15 Surrency, History of the Federal Courts, 115. 28
sovereign nation. Under these circumstances, the preservation of each seemed
clearly to justify the use of unprecedented or even extreme measures. But the
military defeat of the rebellious southern states, however, failed to remove all
remnants of this threat. Following the war’s end, it soon became apparent that
the southern states were going to resist the implementation of Congress’s
reconstruction policies and particularly those that were intended to ensure
recognition of the rights of freed slaves.
By way of response and in relatively short order, Congress, under the
control of the Republican Party and acting pursuant to the authority granted it
under the newly adopted Thirteenth Amendment, which abolished slavery,
passed into law the Civil Rights Act of 1866, which committed federal resources
to the peacetime enforcement of federal policy. This effort to extend federal
jurisdiction had been made necessary by the reluctance of the southern states to
resume their traditional roles as the guarantors of civil liberties under the
conditions imposed upon them by a congressionally directed process of reunification.16 In ways that could then be only partially appreciated, the Civil
Rights Act promised to alter the relationship between the states and the federal
government.17 In making federal district courts accessible to all who were unable
to enforce their rights of citizenship in state courts, Congress was essentially
16 Meassonier, Neo-Federalism, Popular Sovereignty, and the Criminal Law, 555; Gerald D. Ashdown, Symposium: Federalism and the Criminal Justice System: Introduction: Macro and Micro Evaluation of the Federalization of Crime, 98 West Virginia U of Law Rev 759, 799 (Spring 1996); Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings U of Law Journal 1135-1174, 1140 (April 1995); Donald G. Nieman, Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991), 80-82. 17 Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, Publishers, 1988), 244. 29
threatening, in contravention of established federal principles, to employ powers
that were normally reserved to the states, the development and enforcement of
criminal law, to secure the aims of the Civil Rights Act.18
In 1870, and again in 1871, the Republicans, emboldened by the
majorities they had secured in both houses of Congress, chose to directly
confront an organized and increasingly violent resistance to the implementation
of their reconstruction policies in the south.19 In both of these years, the
Congress, repulsed by the extent to which local authorities in the south were
tolerating and even colluding with efforts to repress the freedmen, enacted, over
the objections of the Democratic minority, special enforcement bills that enabled
the federal government to prosecute and punish criminal activity normally
prosecuted in state courts and thus provided the federal courts - then resuming
their role as the principal instruments of national power - with concurrent
jurisdiction over criminal actions that targeted the South's sizable population of
former slaves.20 Efforts to combat the more violent aspects of the south’s
resistance to the expansion of a black electorate proved successful at first,21 but could not be sustained over the longer term. Despite the resounding success of the Republican Party in the election of 1872 and its increased majorities in both houses of Congress, support for its reconstruction policies, the political and legal context within which the enforcement acts had been applied, began to wane,22 as
18 Ibid., 252-253. 19 Act of May 31, 1870, 16 Stat. L. 140; Act of February 28, 1871, 16 Stat. L. 433. 20 Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (New York: Harper & Row, 1982), 470-72, 488-92. 21 Foner, Reconstruction: America’s Unfinished Revolution, 458-459. 22 Jean Edward Smith, Grant (New York: Simon and Schuster, 2001), 548-552. 30
much the outcome of its temporary political successes in the “reconstructed”
states of the south as an outgrowth of rising concerns regarding an increasingly
complex and nationalized economy. But even before the election, there had been a growing fear, among Republicans as well, concerning the implications of federal intervention, reservations that were increasingly shared by those responsible for the government’s prosecution of the civil rights cases. “The . . .
boundless scope of constitutional authority over personal rights” raised
increasingly difficult jurisdictional questions for judge and prosecutor alike. “Their dilemma was to define federal criminal jurisdiction over civil rights violations without supplanting state criminal statutes or eliminating the criminal jurisdiction
of state courts.23 For a people who remained deeply committed to the principles
of local autonomy and decentralized power and who could no longer justify the
exercise of federal authority in matters that extended beyond clearly recognizable
federal interests, these policies seemed increasingly unwarranted, indefensible,
and controversial.24
While the nation's form of federalism survived the war essentially intact,
much that represented the customarily restricted role of the federal government
did not. Buoyed by the heightened nationalistic sentiment generated by the war and forced to adapt to the many demands made upon it as a result of the
circumstances with which it was confronted, the federal government assumed a
23 Robert J. Kaczorowski, Revolutionary Constitutionalism In the Era of the Civil War and Reconstruction, New York University Law Review 62 (1986), 920. 24 Philip A. Klinkner and Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality In America (Chicago: University of Chicago Press, 1999), 86, 328; Nieman, Promises to Keep, 89-90; Forrest McDonald, States Rights and the Union, Imperium in Imperio, 1776-1786 (Lawrence: University Press of Kansas, 2000), 214-215. 31
more activist approach both to the challenges posed by mobilization and to the
process of governing a nation involved in a struggle for its very existence. The great expanse over which the Civil War was waged and the political, social, and economic demands that were made upon the government waging it opened the way to unprecedented governmental intrusion upon the daily life of the citizenry and encouraged a redistribution and consolidation of economic power in the private sector. The war facilitated accommodations between the nation's manufacturers and government, provided for the governmental subsidization of railroad construction and other industries, and brought about the adoption of policies (i.e., the establishment of a national banking system and currency, land grants) as well as practices (i.e., deficit spending, conscription) that would help to transform both the context within which the federal government functioned and the expectations regarding the government’s responsibilities that grew out of it.
This transition would reinforce the nation's federalist structure while providing, somewhat paradoxically, greater latitude in the development of collaborative arrangements between the federal and state governments.
The Search Continues: The Doctrine of Dual Federalism
This collaboration would prove to be significant in the development of a federal “police power” and play a critical role in structuring a regulatory response to the challenges posed by an array of practices that were seen as being criminal, socially harmful or otherwise threatening to the nation’s sense of order.
Each of these trends would act upon the other, offering, in the process, new opportunities to both the states and the national government for carrying out the 32
public purposes that were becoming increasingly common to them both. The first of these trends was an outgrowth of the nation's political and institutional
diversification, a product of its expansion into a nation encompassing an
increasingly larger number of states and thus more diffused source of political
power. Under the Constitution, each state, regardless of when it was admitted to
the union, possessed similar inherent powers, not the least of which was the
retention of a comprehensive jurisdiction over criminal law. The very essence of
federalism, which reserved to the states and their localities control over their own
affairs, thus remained intact even as the nation became more economically
integrated, socially complex, and mobile. What is often overlooked, however, is
the extent to which the federal government actually contributed to the strength
and vitality of the nation’s federalist system – evidence not of any hostility to the
restraining principles of federalism, but rather of a profound commitment to the
political values they embodied. The nation’s westward expansion and the
development of its territorial claims had always depended, to a very large degree,
upon the efforts of the federal government to advance the cause of settlement
and to facilitate statehood. Toward this end, the federal government made land
available to the public, encouraged the extension of transportation and
communication networks, and provided some semblance of security over the
entire process through the military and civil means at its disposal. In a country
that possessed such enormous diversity in its geography and people, their
customs and characteristics, the creation of states and the administrative entities
that serviced them was understood as an essential step toward the fulfillment of 33 those principles of political democracy that set the nation apart from other countries and were perceived as the true source of its power. The second trend emerged as the natural outcome of the strong economic and social changes - along with corresponding advances in technology and transportation - that followed the conclusion of the Civil War. New methods of industrial organization and management, larger scales of production, expanding national markets, and unprecedented concentrations of capital contributed dramatically to the transformation of American society and added immeasurably to its growing interdependence.25 These developments and the political tensions they produced stimulated the growth of a more flexible and expansive federal-state relationship: a relationship that would underscore the federal government’s strong interest in ensuring that the states’ police powers, despite their limitations, remained effective in their application and purpose.
In response to the increased demands of a modernizing society, the legislatures of the various states gradually adopted policies that extended their regulatory powers and increased their supervisory responsibilities over the public welfare. Steps were taken, in many instances, to assume greater control over the distribution of land, to supervise the allocation of natural resources, to expand the licensing process, and to establish and administer pension and other public welfare programs. The magnitude and complexity of the economic and social changes that followed the Civil War, however, also raised serious questions regarding the nation’s social stability and the consequences of its impressive industrial growth. Much of this unrest was attributable to an emerging corporate
25 Foner, Reconstruction: America’s Unfinished Revolution, 464-465. 34
economy, which, despite its efficiencies in production and capacity for market
expansion, tended to undermine the more traditional patterns of labor-
management relations and to insulate corporate enterprises from local efforts to
influence or regulate their operation. Industrial workers, who suffered from
irregular employment and received poor compensation for their labor, found that
their ability to counteract these conditions was much reduced in the face of the
corporations’ growing influence with local authorities, state legislatures, and the
courts.
As working-class and agrarian militancy spread in the 1870s, however, the
nation slipped into an economic depression, intensifying fears of impending class
conflict and presenting a new threat to public order.26 The depression of 1873
would come to be remembered as among the worst this country had ever
experienced. Half of the nation’s railways, along with a substantial number of its
business enterprises, were faced with the prospect of bankruptcy, and
unemployment among the nation’s work force soared.27 The depression and its
dislocating effects brought very real suffering to many, particularly in the cities where the laboring force was concentrated. Conditions there and in the country’s
rural areas encouraged industrial and agrarian workers to organize, if separately, amidst a rising storm of protest and agitation for relief. In 1877, this turmoil erupted into violence as striking railway workers from Maryland through Illinois became embroiled in conflicts with local police and other organizations employed
26 Melvin Dubofsky, The State and Labor In Modern America (Chapel Hill: The University of North Carolina Press, 1994), 8-9, Chapter 2. 27 Nancy Cohen, The Reconstruction of American Liberalism, 1865-1914 (Chapel Hill: University of North Carolina Press, 2002), 122-123. 35
by the railway companies who were committed to the destruction of the worker’s unions. The conflict that ensued would eventually require the deployment of large numbers of United States Marshals and military forces. The fear of impending class warfare that it provoked would find relief, if only temporarily, in
the adoption of repressive measures that not only destroyed the railway workers’
unions, but also installed new legal impediments, including the likelihood of
criminal indictment, to the organization of American labor.28 Even as the
debilitating effects of the depression receded, however, calls for increased
governmental intervention continued, but reflected a shift in focus to a newly
perceived and equally serious threat to the nation’s free market principles and to
those of the nation’s political traditions closely associated with them, the
appearance of relatively unchecked corporate power. Among the nation’s farmers, small businessmen, and industrial workers, there was a growing
recognition of how vulnerable their interests had become in an economy
increasingly organized and dominated by the corporation and its allies. As the
pace of industrialization accelerated, these groups exerted greater pressure upon
their state legislatures to take action – to counteract through a variety of
protective enactments and regulatory schemes the more challenging effects of
an economy increasingly driven by economic forces and trans-national
organizations over which these legislatures, given their jurisdictional limitations,
had very little hope of controlling. Limited as to the political resources to which
they had access and dissatisfied with the limits imposed upon their legislatures
28 Philip S. Foner, The Great Labor Uprising of 1877 (New York: Monad Press, 1977), 99-101; Carl Smith, Urban Disorder and the Shape of Belief (Chicago: The University of Chicago Press, 1995), 106-109. 36
by the courts, those whose saw their economic, social, and political interests
placed at great risk by an increasingly national and centralized economy
concluded that they had no other recourse than to involve the federal
government, with its broader jurisdictional reach, in their efforts to restrain and
regulate an economy that was proving to be so damaging to their own
aspirations. At the very core of this development was an unresolved question: to
what extent could the power of the national government be used to achieve
economic and social reform, assuming, of course, that it even had the
constitutional authority to do so?
Fashioning a “Supplemental” Role
From the earliest years of the Republic, those powers that a state could
legitimately employ in responding to the demands made upon it were derived
from its status as a sovereign entity.29 These residual powers made the
functioning of government possible and were widely regarded as a basic
prerequisite to any "well ordered society"30 That the states alone enjoyed access to such power clearly inferred that they possessed the necessary authority with which to regulate the activities of individual citizens or, for that matter, any commercial enterprise where the purpose of its supervision was to protect the well-being and safety of the public at large. Police powers were, by their very nature, as elastic in their application as they were necessary to the organization and functioning of society. When utilized, however, these powers were not without limits: "Merely declaring that certain policies promoted the public good did
29 Schwartz, A History of the Supreme Court, 80. 30 Melvin I. Urofsky, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” The Journal of American History 72, no. 1 (June 1985), 66. 37
not by itself bring measures within the sanction of the police power. The laws
had to relate specifically to a clearly recognized health or safety objective and to
be 'clearly necessary for the safety, comfort or well-being of society.'"31
Nonetheless, the availability of a broad range of potential uses for the police powers and the relative ease with which they could be so expansively interpreted marked them from the very beginning as a source of legislative power that would consistently invite critical judicial scrutiny and be kept, given the potential for abuse, essentially “subservient to local direction.”32 As a result, there was
implicit in the use of the police power the notion that regulatory authority of this
kind belonged to the states and not to the central government. Not only was it widely believed that the responsibility for "secur[ing] and promot[ing] the public welfare" had been entrusted to the states, but it was also understood that the police powers themselves could never be "surrendered" to the national government, "nor directly constrained by the Constitution" without risking serious harm to the nation's federal system and that delicate balance of power that it was designed to preserve.33 This was, it now seems, as important a matter to the
national government as it had ever been for the states.
Notwithstanding its reconstruction policies in the south, the federal
government had long operated under the assumption "that federalism required
that the day-to-day protection of the citizen . . . remain[ed] the duty of the
31 Ibid., 67. 32 Cushman, Studies In the Police Power of the National Government, 291. 33 McDonald, States Rights and the Union, 226. 38 states."34 The powers assigned to the national government, therefore, being more removed from the control of the local citizenry, were deserving of far more restraint, the legacy of revolutionary war era concerns that had influenced the framing of the Constitution and brought on its clear allocation of power between the states and the central government. As a consequence, Congress was not only prevented from exceeding the authority granted it under the provisions of the
Constitution, but it was also prohibited from enacting legislation of a sort that was comparable in its form to the police powers of the states.35 This maxim, that the states’ police powers could neither be delegated to the federal government, nor so directly “constrained by the Constitution” as to diminish the state’s authority without risking serious damage to the nation’s federalist structure,36 would be reflected in the post-Civil War decision-making of the federal courts and find reinforcement in the Supreme Court’s resolution of the Slaughter-House Cases of 1873.37
34 Michael les Benedict, “Preserving Federalism: The Waite Court and Reconstruction,” Supreme Court Review (1978), 47. 35 Cushman, Studies In the Police Power of the National Government, 290-297, 381-383. 36 McDonald, States Rights and the Union, 226. 37 82 U.S. 36 (1873). The Slaughter House Cases arose from a dispute between two groups of butchers in the city of New Orleans, one which benefited from a regulatory enactment, purportedly for public health reasons, of the State of Louisiana and one that did not. The plaintiffs argued that the state’s attempt to regulate the processing and distribution of beef in the city constituted a violation of their rights to pursue their livelihood and, therefore, of the protections afforded them under the privileges and immunities clause of the recently adopted Fourteenth Amendment. A slim majority of the Court disagreed, finding that “Rather than the fundamental rights to life, liberty, and property, the Court held that the rights secured under the privileges and immunities clause included only those rights specifically enumerated in the Constitution, or incidental to them. . . . . These rights included: the rights to use the ports and navigable waterways of the United States; the right to interstate travel and transaction of business, the right to the protection of the United States government when on the high seas or in foreign lands, the right to peaceably assemble and petition Congress for redress of grievances; the right to the writ of habeas corpus, and the right to settle in and become a citizen of a state on the same basis as other citizens.” Kaczorowski, “Revolutionary Constitutionalism In the Era of the Civil War and Reconstruction,” 938-939, fn., 938. 39
Even as the federal government evolved into a more powerful institution,
the states retained their identity as the principal “defining force and guarantor of
the rights of citizenship.” To them, therefore, fell the primary responsibility for the
enactment of legislation providing for the protection of the property, moral values,
and general welfare of the public.38 But the economic and social conditions that
emerged in the aftermath of the Civil War were substantially different from those
that had preceded it. The smaller scale and localized character of everyday life
were rapidly giving way to new technological innovations, demographical
changes, and commercial developments that would transform the political and
social environment within which governments functioned and strain their ability to
moderate the pace at which society was being reorganized and modernized.
Having to adjust to these new conditions and the social, cultural, and behavioral
changes they inspired placed a heavy burden upon the states’ existing resources and regulatory capabilities. If anything, the anxiety and social tensions that resulted encouraged a growing appreciation of the real dimensions of the problems that had arisen, but made effective solutions less manageable, in part, because of the jurisdictional limits beyond which the powers of the states could
not reach. Under these circumstances, conditions were especially ripe for
federal intervention, but, given both constitutional and historical imperatives, only
that of the narrowest kind and then only by means of a collaborative arrangement
that could withstand the most intense political pressure and the most unyielding
of all constitutional considerations, which, when taken together, would prove
particularly fateful in shaping the future of relations between the states and the
38 Benedict, “Preserving Federalism,” 57-59. 40
central government. It is against this backdrop, then, that the evolution of the
federal government’s crime control policy and its development, in the latter part
of the nineteenth century, of an entirely different rationale can best be
understood.
The rising influence and power of the corporation was a powerful symbol
of this new era, important both for its political and economic repercussions and
for the stimulus it gave to the development of the government’s regulatory role in
a federalist system. Appearing alongside this trend were other changes that
diminished the importance and influence of locally based economies and
transformed the organization and very nature of the workplace. New methods of
transporting commercial goods and marketing services and products - the
consequences of expanding national markets - directly challenged community
traditions and cohesiveness and made local populations feel especially vulnerable to practices with which they were unable to contend without the assistance of a moderating influence. None, however, fired the public imagination more than the corporation, this center of wealth and vast corporate power that could not, or so it seemed, be held accountable for its conduct. The unprecedented size and organizational discipline, the propensity for industry- wide consolidation and market dominance, and particularly the competitive pricing practices that were characteristic of so many of the larger corporations
were sufficient, especially for those who were most aggrieved by these features,
to justify state intervention, whether for the sake of public safety, order, and
health, or for the protection of vital moral and political values. 41
State action, however, was not without its difficulties, the most pressing of
which actually seemed to invite federal involvement in matters of governance and policy that traditionally lay within the exclusive province of the states. As the nation had become more interconnected through advancements in technology, industry, and commerce, the very context within which the legitimate uses of governmental power were generally understood itself underwent a profound change. What discretion the individual states once exercised in regulating all manner of activities within their jurisdictions could no longer be as easily relied upon, given the industrial and commercial progress then sweeping the nation, to obtain the same measure of protection to which the public had been accustomed.
Interstate commerce, in particular, had taken on a new character, sometimes, it was felt, to the clear detriment of the public’s safety, health, or morals, and, because it was no longer generally confined to the state’s jurisdictional boundaries, posed a growing challenge to the state’s regulatory authority. Many of the approaches used to counter this threat, including protective enactments, licensing requirements, taxes, supervisory commissions, and a host of other measures were challenged in state and federal courts, often with some degree of success, and raised, as a result, troubling questions concerning the very efficacy of state regulation. To what degree the states, under the rubric of their police powers, be permitted to exercise discretion over activity that extended across their borders, or that occurred outside of those areas where they would ordinarily be subject to the state’s control or influence, thus became one of the most significant legal and political issue of the day. 42
No one, of course, questioned whether the federal government's power to
oversee interstate commerce was constitutionally preeminent – it clearly was.
Yet the responsibility it bore to oversee interstate commerce had originally been
conceived as little more than a means to facilitate and promote, rather than to
police, commercial activity that extended across state boundaries. Subsequent
developments, however, would inject new meaning into the definition of
"commerce" and would force Congress, with guidance from the federal judiciary
and often in ways that would provoke controversy, to redefine its regulatory role.39 Of all of its constitutionally enumerated powers, Congress’s responsibility for the regulation of interstate commerce would ultimately be recognized as the one that offered the most direct path toward the extension of federal jurisdiction.
For not only was Congress prohibited by the Constitution from exceeding the authority specifically delegated to it, but none of the powers granted to the
Congress authorized it, in the absence of a federal police power, to enact
legislation specifically for the protection of the moral values, property, or general
well being of the public.40 If and when the occasion arose, only the powers
specially granted to Congress, such as the power to levy taxes, to supervise a
postal system, or to regulate interstate commerce, would be available to serve as
a constitutionally valid foundation for many of the regulatory enactments
promulgated by Congress.41 While the doctrine of enumerated powers remained,
therefore, a powerful brake upon any movement toward an outright federal police
power, it became, if somewhat indirectly, a uniquely transformative feature in a
39 McDonald, States Rights and the Union, 290-297, 381-383. 40 Cushman, Studies In the Police Power of the National Government, 291. 41 Ibid., 290-297. 43
process that ultimately shaped the federal government’s role as a regulatory
power while preserving the integrity of the nation's federalist system of
government.
The extension of federal authority over the newly emerging features of
interstate commerce could not have occurred without the expansion of the
constitutional boundaries that had long served as a barrier to a more aggressive
regulatory role on the part of the federal government. Two developments were
particularly influential in this regard: the first originated in the growing
disillusionment that accompanied the rise of a modern economic order and the
second was a product of the incremental, but accelerating growth of federal court
jurisdiction that made the federal courts and, by implication, the federal
government's involvement in the affairs of the states inevitable. By the last
quarter of the 19th century, many of the key assumptions of American
democracy - among them, economic independence, political and social equality,
and a government responsive to the will of the people - were proving insufficient
or unsuited to the challenges posed by large-scale capitalism and the social and
demographic upheaval that were associated with it.42 Reaction to these
changes, however, varied significantly in light of the heterogeneous character of
American society and the different economic outlooks and motivations it encompassed. Americans as a whole were reluctant to accept that "technology, massed capital, and urbanization" had transformed the nation into a country
42 David l. Hanson, The Democratic Imagination in America: Conversations With Our Past (Princeton, NJ: Princeton University Press, 1985), 186. 44
profoundly different from what it had once been.43 The ambivalence many felt
toward this new industrial order, whose benefits they readily recognized and
which was so closely tied to their faith in progress and pride in nation, left them
ill-prepared to contend with the more unfortunate social and economic effects of
industrialization. As adherents of a social philosophy that emphasized personal
and communal values, they found themselves increasingly on the defensive in an
environment dominated by new rules that reflected different values and rewarded
the pursuit of self-interest and the less principled uses of power. There were
many Americans who could not live comfortably with this contradiction. They
were convinced that the changes that they were experiencing, if left to their own
momentum, would eventually undermine the nation's attachment to its
democratic principles and thwart the social and economic betterment of its
people.
Redefining Governance: Urban Growth and Disorder
Throughout their history, Americans had relied upon "the private sector and the market system to determine the direction of society and the allocation of
[its] resources." Few appreciable alternatives existed, and practically none that could achieve such influence or control without profoundly reshaping the economic or political structure of the nation. “National institutions,” John
Chambers would observe, “such as the federal government and the major political parties were hampered by timidity and traditional checks on the power of
43 Smith, Urban Disorder and the Shape of Belief, 250. 45
the central government.” 44 The disruption of deeply ingrained social, cultural,
and political patterns, therefore, inspired and gave considerable momentum to a
series of social movements that took on the industrialists, corporations, and other
entrenched interests whose power seemed “monstrous and seamless" and
whom they held responsible for their distress.45 Among the first such movements
to be organized on a national scale were the nation’s farmers and their allies, the
small merchants and communities that serviced them. By the last years of the
nineteenth century, a revolution in agriculture had virtually eliminated diversified
farming and replaced it with a highly specialized, technologically driven form of business enterprise that required continuing investments of capital and, consequently, the assumption of greater amounts of debt, practices which made the cultivation of all but cash crops impractical. The risks farmers assumed were made greater by their dependence upon market forces, including interest rates, and the costs of transporting and processing crop yields, over which they had no control. As a result, a combination of unproductive seasons and, alternatively, falling prices during periods of greater productivity proved ruinous for many and spurred protests and political agitation that laid the groundwork for the formation, though short-lived, of an independent political party. Industrial workers, too, struggled to overcome their marginalization within the nation's new economic order where labor itself had been reduced to a mere commodity. Divided, politically disorganized, and distanced by the nation's principal political parties,
44 John W. Chambers II, The Tyranny of Change: America In the Progress Era, 1890-1920 (New Brunswick, NJ: Rutgers University Press, 1992), 52. 45 Michael Kazin, The Populist Persuasion: An American History (New York, NY: BasicBooks, Harper Collins Publishers, 1995), 28. 46
the workers and their unions were unable to obtain the recognition and
bargaining power they sought and were roundly condemned for the methods they
used, the boycott and the strike, to advance their demands and to defend their
interests. Neither of these movements succeeded: the Populists were unable "to
bridge divisions bred of class, ethnicity, religious denomination, and prior partisan
loyalties" and were unable to grasp the fact that they had long since become an
integral part of the very economic system they were condemning. Organized
labor, on the other hand, was under no such illusion. Despite their evident
weaknesses, organized labor gambled heavily and unsuccessfully on the
outcome of campaigns that were intended ultimately to decide where, in this new
economic order, power was to reside. It is significant that both movements had
sought some form of government protection: for the Populists, in the form of a more favorable monetary policy, debt relief, and regulation of the railways and for
the workers, recognition of the legitimate purpose and legal standing of their
unions and the insulation of their collective-bargaining efforts from interference.
Neither understood, however, as did the progressives who followed them, that
the protections they sought could only be achieved through a reordering of the
relationship between the state and its citizens, in effect, making the former a far
more effective instrument of power on behalf of the collective interests of the
latter.
Seized by a disquieting awareness of a nation on the verge of upheaval,
the progressives were eager to address a broad range of social problems and to
create the conditions necessary to establish a more harmonious economic and 47
social order. Embodying a broad cross-section of reform interests and benefiting
from the strength of their various constituencies, the progressives launched what
amounted to a direct assault upon the “methods and forms of American politics,”
achieving fundamental changes in the political process and capitalizing on a
growing public sentiment that increasingly favored a more activist government.46
Among the more active elements of the progressive response were urban civic and social reform organizations that were determined to translate their own convictions and values into a new social and political reality. Social welfare programs and improvements in the provision of city services, the management of public health, and the condition of housing were all seized upon as important steps toward the amelioration of the conditions that plagued the nation’s cities and threatened continuing disorder. But the changes experienced in the last decade of the nineteenth century and in the first decade of the twentieth were of a kind and magnitude that not only seemed increasingly hostile to traditional values, but resistant to the very goals of progressive reform.
There were many other reasons why this state of affairs raised such concern among progressive circles, for, like the moral traditionalists who had dominated the movements for reform in the past, the progressives were keenly conscious of these changes and the implications they carried for the maintenance of public order.47 Unlike this older reform tradition, however, they
46 Smith, Urban Disorder and the Shape of Belief, 252-255. See Daniel T. Rogers, Atlantic Crossing: Social Politics in the Progressive Age (Cambridge, MA: Harvard University Press, 1998), Chapters 2-4; Stephen J. Diner, A Very Different Age: Americans of the Progressive Era (New York: Hill and Wang, 1998), Chapter eight. 47 Paula S. Pass, The Damned and the Beautiful: American Youth In the 1920’s (New York, NY: Oxford University Press, 1977), Chapter 1. 48
were more inclined to believe that significant public values could be better
preserved through governmental institutions. Foremost among them, at least on
a local level, were the agencies that comprised the local criminal justice system,
the courts and the police in particular, which constituted a ready means by which
the improvement of society could be achieved and the behavior of its citizenry
made more disciplined. In both the cities and in the country, rising public
concerns regarding the state of the nation’s moral order were easily linked to the
arrival of newcomers whose numbers, origins, and cultural traditions set them
apart and made them appear rootless, unstable, and less likely to accept the
behavioral norms, social customs, and democratic principles by which American
society functioned. With confidence in the process of acculturation and
assimilation ebbing and fear of crime mounting, more urgent and even coercive
measures seemed called for. Among the progressives, none questioned whether
the efficient and effective enforcement of the law was a basic condition for a free society.
The populations of the nation’s cities would, therefore, have to be convinced that it was they who were ultimately responsible for the moral climate of their neighborhoods, their cities, and even their society. Toward this end, new kinds of laws and ordinances were introduced both to criminalize and punish socially objectionable behavior and to impose minimally acceptable standards of conduct upon an increasingly diverse and unruly population. Certain conduct, such as the consumption of alcohol, gambling, prostitution, fraud, and the sale of pornography, was specifically targeted. In time, however, as urban crime 49
became more organized and dispersed and other socially marginal behavior
more difficult to suppress, the very limited success of local policing focused
increasingly wider and more critical attention upon the “disproportionate reach of
state regulatory power,” that is, the inability of the local authorities to counteract the effects of activities that disrupted or challenged the socially disciplined or moral life of their communities because they originated from outside the jurisdictional boundaries of the local or state governments concerned.48
Especially troubling was the realization that, as the authority of elected officials and the courts was reduced by these legally and constitutionally designated jurisdictional boundaries, the prospects for improvement and further development in the process of self-government would be significantly diminished.49 As a
consequence, advocates of reform began to see in federal intervention a new and viable option for implementing and safeguarding their many programs of reform. The emphasis they soon came to place upon federal legislation as a
means of ensuring “moral citizens and a moral environment”50 clearly
represented a dramatic change in strategy, but one that still remained limited in
its purpose and application. This interest in federal intervention did not, Richard
Hamm has argued, constitute a retreat from what were essentially contemporary
and immutable conceptions of federalism.51 Rather, he argues, it marked the
48 Herbert A. Johnson and Nancy T. Wolfe, The History of Criminal Justice, 2nd ed. (Cincinnati, OH: Anderson Publishing Company, 1996), 185-186; Millspaugh, Crime Control by the National Government, 46. 49 Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 4-17. 50 Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (Chapel Hill: The University of North Carolina Press, 2002), 81. 51 Richard Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Chapel Hill: The University of North Carolina, 1995), 10-14. 50
beginning of a momentous shift in thinking respecting the appropriateness of
federal regulatory authority as an instrument with which state police powers,
faced with increasingly complex jurisdictional challenges and controversial
enforcement issues, could be better preserved.52
The Federalist Equation: Derivative Powers and Public Need
Congress, however, had rarely displayed any real enthusiasm for legislation promoting moral reform. Such matters were considered more appropriately the concern of the states and their localities, a bias that was widely shared on all levels of government. On those occasions when Congress did actually venture into a realm generally reserved to the states by the Tenth
Amendment, it had done so to perform what were recognized as clearly federal responsibilities. In 1842, for example, Congress enacted a tariff act that contained a provision specifically forbidding the importation of prints and pictures considered lewd or immoral,53 a prohibition that was extended in 1857 when the
original act was amended to include additional items deemed morally objectionable. Such barriers, however, which Congress had the authority to erect under Article I of the Constitution, proved inadequate to suppress the ongoing trade in pornographic materials within the nation’s borders. The federal statute was limited in its application to the importation of obscene matter and, as a result, could not be employed against materials produced and disseminated internally, that being considered a form of censorship which constituted a police
52 Cushman, Studies In the Police Power of the National Government, 381-383; Hamm, Shaping the Eighteenth Amendment, 189. 53 Act of August 30, 1842, 5 Stat. L. 562. 51
power exercisable solely at the discretion of the states. Not, in fact, until 1865 would the federal government, now motivated by its concerns regarding the
effect of pornography upon the discipline of the military forces engaged in the
war for union, attempt, on the basis of its authority to supervise the mails, to
extend its policy of prohibition, again a function that clearly fell within its
jurisdiction.54
One of the more distinguishing aspects of American criminal law was the
often decisive influence that partisan politics could exert in shaping the law and
its enforcement. In 1873, Congress, heavily pressured to invoke its authority
over the postal system, enacted a statute that not only expanded the list of
“obscene” materials to include contraceptive devices and information concerning
birth control, but, more significantly, gave a federal agency the power to
determine what items would be acceptable for mailing. Those violating the
statute were made subject to severe criminal penalties for the violation of any of
its provisions.55 “In the following years, federal courts ruled that even those who
did not actually mail the offending literature or drugs were guilty under the statute
if they began the process, and that mere slips of paper (thus, presumably,
personal letters) fit the description of proscribed mailings.”56 Central to the enactment of this federal law had been the efforts of groups – vigilance leagues, anti-vice societies, church groups, and others concerned with the state of their
54 Helen Lefkowitz, “Victoria Woodhull, Anthony Comstock, and Conflict Over Sex In the United States in the 1870’s.” The Journal of American History 87, no. 2 (September 2000), 423 55 Act of March 3, 1873, 17 Stat. L. 598, “Act for the Suppression of Trade in, and Circulation of Obscene Literature and Articles for Immoral Use” (The “Comstock Law”). Punishment could include one to ten years in prison or a fine of from $100 to $5000. 56 N. E. H. Hull & Peter C. Hoffer, Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence: University of Kansas Press, 2001), 35-36. 52
communities’ moral standards - that had emerged in response to changing
societal values and social conditions and who were convinced that the nation’s
“moral resolve” could not develop “unaided.”57 The passage of what became popularly known as the Comstock Act encouraged enactment of similar anti- obscenity laws in many states, including New York. This development not only provided local authorities with increased powers to conduct searches and to seize allegedly obscene material, but also provided the political supporters and proponents of the local anti-obscenity acts with the authority to enforce their provisions and to prosecute those in violation of the law.
Concerns regarding the constitutionality of the federal statute, however, while not so strong as to have prevented its passage, proved sufficient, eventually, to subject the law to an increased level of judicial scrutiny particularly after efforts to invoke its penal provisions became more controversial. Federal courts, initially relying upon federalist principles to distinguish between the limited jurisdictional basis for federal intervention - regulation of the use of the mails - and the discretionary authority of the states to criminalize the underlying conduct,58 eventually began to focus their attention upon other issues that
“raise[d] the specter of unchecked centralized power,” that is, the rights of
citizens to be protected from unreasonable searches, from entrapment, and from
the abridgment of their right to free speech and expectations of privacy.59 Such
issues, while serving as a reminder of the limitations by which federal
57 Jay A. Gertzman, Bookleggers and Smuthounds: The Trade In Erotica, 1920-1940 (Philadelphia: University of Pennsylvania Press, 1999), 105-106. 58 United States v. Bott, 24 F. Cas 1204, 1205, cited in Tone, Black Market Birth Control, 451. 59 Tone, Black Market Birth Control, 450-451. 53
enforcement activity was constitutionally constrained, were not, however, as
compelling as the growing realization of the limited value of the postal clause as
a vehicle for federal regulation. Continuing efforts on the part of the federal
authorities to deny use of the mails to those whose conduct Congress regarded
as immoral proved increasingly inadequate where other means of interstate
conveyance were becoming not only more widely accessible, but also, given the
constitutional constraints placed upon the states’ regulatory authority,
increasingly impervious to state control.60 Apart from the difficulties federal
officials experienced in prosecuting violators of the Comstock Act, it soon
became apparent that the supervisory authority given Congress over the use of
the mails was, as an instrument for extending federal control over the full range
of activities that collectively represented interstate commerce, insufficiently
elastic and, therefore, inadequate.
As originally applied, Congress’ regulation of interstate commerce rarely
involved the outright prohibition of goods from interstate commerce.61 Far more
common was its practice of imposing little more than special conditions affecting
such trade. In 1886, for example, Congress, then preoccupied with questions
regarding the safety of travel upon the nation’s waterways, forbade the
transportation of explosives aboard passenger vessels plying routes between the ports of the various states. Such prohibitory measures, despite the existence of clearly supportive legal precedent, nevertheless raised concerns regarding their constitutional validity and the potential for diluting the regulatory responsibilities
60 Ibid., 439. 61 Johnson and Wolfe, History of Criminal Justice, 2nd ed., (Cincinnati, OH: Anderson Publishing Company, 1996), 186. 54
of the states.62 Given the growing diversity and importance of interstate
commerce, however, especially in the years following the Civil War, Congress’
attitude toward the use of the Commerce Clause as a means of expanding its
authority and as a way of justifying federal intervention gradually changed. This
emerging perspective, reflecting the depth of Congress’ concerns for the most
pressing social and economic issues of the day, would result in the development
of a nascent federal police power, which would be largely shaped, in turn, both
by the cooperative arrangements between the national government and the states and by the political pressures and constitutional considerations to which
this relationship was continuously subjected. Congress’ preference for utilizing
the Commerce Clause to extend federal jurisdiction coincided, it seems, with a
resurgence of regulatory activity on the part of the states, themselves caught up
in the development of measures facilitating the regulation of financial institutions,
railways, and public utilities and the improvement of working and living conditions
for their citizens. Just as the demands of an increasingly urban and industrial
society invited reliance upon regulatory legislation, however, so, too, did the
functional cooperation between the states and the federal government raise fears
that such unbounded regulation would ultimately threaten personal liberty and
the continuing operation of a free market and all that it implied.
These concerns would dominate the prevailing jurisprudence of the last
decades of the nineteenth century63 and result in the imposition of restrictions
upon the regulatory powers of the states and equally limiting conditions upon the
62 Gibbons v. Ogden, 9 Wheat 1 (1824). 63 Eric N. Waltenburg and Bill Swinford, Litigating Federalism: The States Before the U.S. Supreme Court (Westport, Connecticut: Greenwood Press, 1999), 10. 55
subject and scope of federal regulation.64 In the latter part of the nineteenth
century, the greatest challenge facing the nation’s judiciary concerned the reconciliation of public and private rights. Since well before the Civil War, the trend toward greater governmental regulation had been gaining in momentum.
The states, possessed of a general power to act in the public interest, were
increasingly being pressured, in the face of growing economic and social
upheaval, to produce legislation promoting the public welfare and safety.65 From
the perspective of those who supported direct action on the part of the state, the
determining factor as to whether such legislation was constitutionally sound depended primarily upon its purpose, that is, the specific ends to be achieved
through its enactment.66 This perspective on the states’ police powers had been
expanded in the post-Civil War years to apply to economic conditions, then in the
throes of rapid and significant change, and commercial activities the effects of
which were sufficient to cause significant public concern. This particular
approach to the development of public policy was, however, resisted by others,
principally those benefiting from the nation’s new industrial and commercial
order, who resented the states’ attempts to moderate the effects of their business
activities and who opposed such intrusion on the basis that it was fundamentally
unfair and an “infringement upon the economic laws” governing the nation’s
economy.67 Their protests found some measure of receptivity among a growing
number of state and federal courts, which were especially troubled both by the
64 John R. Schmidhauser, The Supreme Court As Final Arbiter In Federal-State Relations, 1789- 1957 (Chapel Hill: The University of North Carolina Press, 1958), 126. 65 Schwartz, A History of the Supreme Court, 80. 66Benedict, “Preserving Federalism,” 43-44. 67 Schwartz, A History of the Supreme Court, 179-180. 56
seeming arbitrariness of the states’ use of their plenary powers and by the likely
political and social consequences of their regulatory policies. What motivated the
nation’s judiciary, particularly the federal judiciary, to assume greater oversight of
the states’ exercise of their police powers, however, remains the subject of
continuing historical interpretation. An earlier view perceives in the courts’, and
especially the Supreme Court’s, “anti-regulatory” stance evidence of a growing
frustration on the part of the judiciary with the lack of restraint with which local
governments acted in using their police powers to contravene the fundamental
rules of the marketplace: “To them, regulatory legislation presented itself as a
clear infringement upon the economic laws posited by Adam Smith and Herbert
Spencer, and the progressive evolution of the society which was supposed to be based upon them.”68 More recent examination of the opinions rendered by these
courts, however, criticizes this view for its failure to adequately address the
conditions surrounding, and the doctrinal perceptions that dominated, the courts’
decision-making during the time in question. It has been suggested, instead, that
“the decisions and opinions that emerge from state and federal courts during the gilded era represented a serious, principled effort to maintain one of the central distinctions in 19th-Century constitutional law – the distinction between valid
economic regulation, on the one hand, and invalid “class” legislation, on the other
during a period of unprecedented class conflict.”69 Regardless of whether the
68 Ibid., 179; see also Schmidhauser, The Supreme Court As Final Arbiter In Federal-State Relations, 126. 69 Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), 10: “Equality, state neutrality, and a demonstrable relationship to the general welfare were the central preoccupations of late- nineteenth-century constitutionalism, not liberty or laissez-faire specifically.” (97); see Michael Les 57 judiciary were persuaded more by the ideology of laissez-faire or by an aversion to the enactment of laws intended to promote the interest of one group as opposed to the interests of the community as a whole, what appears certain is that, throughout this period, while the courts were expanding the doctrine of judicial review over the exercise of the states’ police powers, they were facilitating the emergence of what was to become a federal police power.
As the federal courts adopted new doctrines of substantive law - recognizing the existence of fundamental rights to property and personal liberty, particularly in connection with matters involving regulation of the economy - to serve as a counterweight to the states’ police powers, they also began to more sharply differentiate between the federal government’s regulation of interstate commerce and the exercise of state police powers affecting that commerce. This doctrine of “dual federalism,” as applied by the federal courts, did not, it should be noted, challenge the basic responsibility of the states to provide for the safety, morals, and general welfare of their respective populations. To the contrary, it was just as often employed to reassert or emphasize, in instances of threatened federal intervention, the primacy of the states’ power and discretion with respect to certain established areas of public policy, the latter ranging from policies involving controls over the operations of business entities within the states’ jurisdictions to the preservation of fundamental social values believed essential to the orderly functioning of their communities. Kidd v. Pearson70 is a case in point. In 1884, the state of Iowa prohibited the manufacture of all intoxicating
Benedict, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez- Faire Constitutionalism,” Law and History Review 3(1985), 298, 305-307. 70 128 U.S. 1 (1888) 58
liquors within its borders. The following year, it instituted an action in abatement against a local distillery on the ground that the distillery’s continuing production of alcohol constituted a nuisance as defined by state law despite the fact that the manufacturer’s entire production was earmarked for sale in other states. The
Supreme Court sided with the state of Iowa, finding that the state’s enforcement
of the law did not interfere with interstate commerce, nor deprive the distillery
owners of their property without due process in violation of the Fourteenth
Amendment. In effect, by declaring that a state had the authority to prohibit the
manufacture, sale, or traffic of any commodity within its jurisdiction and to punish those who violated its prohibitions or regulation, the Supreme Court was redefining commerce in such a way as to distinguish between an activity falling
wholly within a state’s jurisdiction (and thus beyond federal regulation) and one
which was trans-national or cross-border in nature (and, therefore, properly
subject to federal controls). Such distinctions would ultimately prove untenable,
falling victim to developments occurring in a rapidly changing and changed world.
Increasingly, as state regulatory approaches and the legal doctrines upon which
they were founded proved inadequate in the face of radically changing business
practices and as the process of enforcement became more complex, costlier and
less certain in outcome, interest in the practicality of centralizing or nationalizing
the policies affected grew.71
71 Charles W. McCurdy, “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903,” Business History Review 53 (1979) 306-307, 314, 336. 59
Federal Dualism and the Anti-Crime Imperative
This distinction between the separate jurisdictions of the states and the
federal government was moderated, however, at least in the context of criminal
law, by the courts’ continuing validation of national measures that fell within the
scope of specifically delegated federal authority and of state regulations that came “within the traditional sphere of police power regulation in the very narrowest sense, that is, crime and immorality.”72 To what extent the Supreme
Court and the federal courts may have contributed to the accelerated expansion
of federal and state legislative power in these areas is difficult to gauge. Until its
abandonment, the concept of dual federalism, which had been devised as to
distinguish between the jurisdictional powers of the state and federal
governments and to constrain the exercise of each, contributed, if somewhat
paradoxically, to rising expectations regarding the uses of federal power and to
the growing importance and diversification of federal policy. Nowhere was this more apparent than in the federal courts’ treatment of criminal justice issues – in their eagerness to protect the states’ ability to enforce those laws that defined and punished immoral behavior and defended moral and social values. Given the pro-regulatory pressures that such limitations inevitably generated, dual federalism and the limitations imposed upon the states’ police powers ultimately resulted in the lowering of the political and institutional barriers to any significant change in the functional responsibilities of the federal government. The federal courts, then, having left this door ajar, so to speak, thus significantly contributed to this process by more clearly defining the constitutional parameters within
72 Schwartz, A History of the Supreme Court, 130. 60
which federal police power could be developed, that is, by setting forth the
conditions and contingencies that would ultimately shape federal crime policy
and the federal agencies that would be charged with its implementation.73
That process actually began in 1876, when Congress made its first
serious attempt to utilize its regulatory power under the Commerce Clause to
establish criminal penalties for the production or sale of goods bearing
counterfeited trademarks.74 This measure, however, was unable to pass the
Supreme Court's scrutiny, which found that, regardless of the authority Congress had claimed to have acted under - whether it chose to introduce legislation as a tax measure, or a regulation upon interstate commerce, or under some other delegated power - that measure would still have to meet the prerequisites for federal jurisdiction that were mandated under the Constitution. Congress had not only failed to explain under which grant of authority it had intervened in this matter, but it had also failed to convince the Court that the purpose of the act was rationally related in some way to a constitutionally recognized state interest. The opinion rendered in what became known as The Trademark Cases75 did not, in the end, inhibit Congress from further experimentation with the exercise of its
regulatory authority under the Commerce Clause, but it did make clear that any
future attempts to enact legislation approximating a police regulation would have
to be more closely identified with the specific constitutional grant of power upon
which Congress was relying in its enactments.
73 Conboy, “Federal Criminal Law”, 318. 74 Act of August 14, 1876, 19 Stat. L. 141. 75 100 U.S. 82 (1879). 61
Having found itself, as Robert Cushman once observed, “compelled to use a process of indirection . . . to do good,”76 and having no other recourse than to accept the conditions imposed upon this exercise of its authority, Congress discovered that it was not only possible for it to accommodate these limitations without altering its intentions, but that it could still accomplish its goals by underscoring the necessity for and, especially, the limited, but constitutionally relevant purpose of its newly emergent federal police power. This course did not always guarantee success, however, but increasingly it seemed that where the purpose of congressional legislation was clearly connected to questions of morality, the likelihood that it would be upheld on judicial review was far more certain. In 1898, Congress passed the Erdmann Act,77 which, while being limited in its application to the nation’s railways, established criminal penalties for any carrier or railway employee to refuse to hire or to discharge a worker because of his membership in a union. Railroad supervisor William Adair was subsequently indicted and convicted for violating the act, but his conviction was overturned on appeal to the United States Supreme Court, which found that the law unconstitutionally infringed on the railway’s liberty under the due process clause of the Fifth Amendment.78 Only five years before, however, the same court had supported Congress’ use of its authority to prohibit the transportation of lottery tickets, a relatively benign object that caused no serious threat to interstate commerce, across state lines.79 Such inconsistencies in the Supreme Court’s
76 Cushman, "Studies In the Police Power of the National Government", 381. 77 30 Stat. L. 424 (1898) 78 Adair v. United States, 208 US 161 (1908). 79 The Lottery Cases, 188 US 321 (1903) 62
position relative to Congress’ authority over interstate commerce inevitably
caused some uncertainty among the federal legislators and rendered future legislation of the same sort an unpredictable affair. In both instances, the court
had employed a legal abstraction of its own making, that of dual federalism, to determine whether Congress should be permitted to extend federal jurisdiction over matters of concern to the states. Despite the fact that issues concerning union membership and the role of unions in the nation’s new industrial order had resulted in strikes and boycotts that had paralyzed the nation’s railways, interrupted the flow of interstate commerce, and invited federal military intervention, the Supreme Court was unprepared to draw a connection between antiunion practices and Congress’ desire to protect the free flow of commerce.
The Court, however, was able to find such connections where the item in interstate commerce could be used for immoral activities in the states from which it was shipped and to which it was sent. The distinction, while unclear, except in the context of dual federalism, nevertheless served as an effective damper upon federal criminal enactments, limiting, for the while, federal enforcement policies to matters that clearly and indisputably involved concerns of a moral mature.
Such influences upon the orientation of federal law enforcement, when combined with other developments - the restriction of federal criminal jurisdiction to statutorily created offenses, recognition of the superior and affirmative powers of the federal government, and the supplementary nature of federal law enforcement - thus became and would remain the doctrinal foundations of federal crime control policy well into the twentieth century. 63
Chapter 2
THE GREAT DIVIDE
Moral and social questions originally left to the several States for settlement can be drawn into the field of federal authority only at the expense of the self-dependence and efficiency of the several communities of which our complex body politic is made up. Paternal morals, morals enforced by judgment and choices of the central authority at Washington, do not and cannot create vital moral habits or methods of life unless sustained by local opinion and purpose, . . . and only local communities capable of taking care of themselves will, taken together, constitute a nation capable of vital action and control. Woodrow Wilson (1908)1
For the framers of the Constitution, crime, as were most threats to individual safety and property, was perceived in very personal terms and with important implications for the quality of life as experienced by their fellow citizens.
Given the prevalence of such views and the existence of very real concerns regarding the power of government to interfere with the liberties of ordinary citizens, the responsibility for dealing with crime and criminals was considered more appropriately a matter of local interest and responsibility. It was, after all, the nation's local communities that were considered not only more vulnerable to the “depredations" of crime, but also in closer proximity to the "sources of the problem and the practical means for its resolution."2 The national government, on
the other hand, was expected to perform no more than a limited and
1 Woodrow Wilson, “Constitutional Government In the United States,” Edited by Arthur S. Link, The Papers of Woodrow Wilson, (Princeton, NJ: Princeton University Press, 1974), Vol. 18, 197- 198, cited in Sidney M. Milkis, “Localism, Political Parties, and Civic Virtue,” Edited by Martha Derthick, Dilemmas of Scale in America’s Federal Democracy (Princeton: Woodrow Wilson Center Press, 1999), 109. 2 Richard Harris, Justice, the Crisis of Law, Order and Freedom in America (New York: E. P. Dutton & Company, Inc., 1970), 32-33.
64 inconsequential role in the maintenance of order and in the protection of community standards. In the absence of any constitutional mandate requiring its intervention, the federal government seemed entirely content to rely upon local resources, however varied or effective, to preserve law and order. Aside from
the clearly recognizable interests it possessed in enforcing laws pertaining to its
operation of the postal service and its territorial obligations, the federal
government was only minimally involved in crime control issues.3
From beginnings such as this, the nation's police, however structured,
emerged as an embodiment of local autonomy in a highly decentralized political
system. The laws they enforced were the products of a diverse political process,
and the manner in which the law was enforced reflected attitudes and conditions
that were unique to each community or region. For more than a century after the
nation's founding, this system represented the framework within which public order could be assured and peace maintained. By 1900, however, a
convergence of major economic, demographic, and political trends resulted in the first of several critical and public examinations of the efficiency of local law enforcement organization and its relevancy to the growing complexities and challenges of modern day life in an industrial society.
That examination had been inspired by the growing influence of a new concept of social control, one which accepted a far more intrusive role on the part of the state and which simultaneously welcomed greater federal involvement in the implementation of crime suppression measures. The enactment of new
3 Virginia Gray and Bruce Williams, The Organizational Politics of Criminal Justice (Lexington, Massachusetts: D. C. Heath and Company, 1980), 1, 10.
65 federal regulatory provisions and resulting extension of federal jurisdiction was, nevertheless, confined to well established boundaries of constitutional authority and was not intended to supplant local policing powers or responsibilities.
Federal crime policy, at least in its development and objective, thus remained tied to an enduring tradition of cooperative federalism. Given the state of policing at the turn of the century, however, cooperative federalism did little more than provide, at best, the most tenuous and difficult basis upon which to formulate a truly effective and broad based response to crime and disorder.
Crime and the Limits of Local Policing and Police Powers
As between local and federal officials, there were, of course, many sources of tension. Aside from the inevitable conflict among the personalities involved and varying conceptions regarding the proper role of the federal
government, the friction that existed was further exacerbated by disparities in
authority, differences in responsibility, and divided allegiances, whether to
opposing political parties or among competing factions. Efforts to reform the
police and to encourage supportive federal action tended, moreover, to heighten rather than to ameliorate existing differences. Even as the public's concern regarding the corrosive effects of crime and corruption intensified during the
1890s, moving whole communities not only to endorse police reform, but to embrace increased federal power as well, the thrust of reform had more to do with questions concerning governance then with issues of safety. The role of the police and the policies they implemented remained essentially a function of politics; to be determined by a process that was open to a broad range of
66 competing local interests. Given the vicissitudes of that process and the unique considerations that shaped it, cooperative arrangements among law enforcement officials tended to be improvisational in nature, informal in execution, and limited in scope and in objective.
As the threat of crime and disorder grew in magnitude and became increasingly associated with the appearance of economic and social conditions found throughout the nation, the collaborative capacities of all levels of government underwent severe testing and acquired, in the process, greater significance as an issue of local concern. As a consequence, expectations regarding the collective power and abilities of the nation's highly decentralized law enforcement system began to rise.4 Improved and more efficient coordination
of law enforcement activity soon became a subject vital to larger policy
considerations whether, for example, in response to concerns regarding the
distribution of alcoholic beverages or to the controversy surrounding the
distribution of prize fight films. These reform-inspired efforts to improve
coordination among the enforcement agencies of government were, however,
ultimately doomed to failure, in part, because such arrangements, if strengthened
and formalized, might well have, in the thinking of the day, diminished the
effectiveness of local control.
Neither the police reformers, nor the voting public were prepared to accept the real implications of collaboration without reservation. They criticized the police for being ill-disciplined, corruptible, and given to displays of favoritism and proposed organizational changes designed primarily to facilitate the centralize
4 Ibid.,, 12.
67 management within police organizations. The principles and standards of bureaucratic management were first promoted and then introduced as an antidote to the lawlessness and avarice that had come to characterize
contemporary policing. it will their intention was not to relieve of the police of the
burden of accountability, but rather to ensure that local law enforcement remains
subject to locally imposed constraints and committed to clearly defined goals.
The prospect of a police organization achieving a status comparable to a
regulatory agency, possessed of an expertise to which people deferred and
therefore entitled to exercise considerable discretionary freedom in managing its
resources and defining its role as it saw best neither conformed to contemporary
images of policing and the capabilities of law enforcement personnel, nor
reflected the very real concerns driving police reform.
What ultimately proved critical in transforming the crime fighting
capabilities of local and federal law-enforcement organizations and, therefore,
the relations between them, was what historian Mark Heller has described as the
evolutionary process by which each adjusted to the changing and broadening
definition of crime.5 That process, paradoxically, would result in very different
organizational and operational environments for each. Federal enforcement
would be profoundly influenced by the ever broadening reach of the enforcement
provisions of the commerce and tax provisions of the Constitution and by larger considerations of national policy and the conflicts inherent in its interpretation and implementation. Changes in local policing, on the other hand, were deeply
5 Mark H. Haller, "Urban Crime and Criminal Justice: The Chicago Case," Journal of American History 57, no 3 (1970), 632.
68 affected by the public's perception of their effectiveness in combating all forms of criminal behavior, a matter which became the defining focus of police technology and activity, and by the competing influences and pressures that became an important characteristic of the relationship they established with the communities they served.6
For nineteenth century Americans, law enforcement was generally
synonymous with the regulation of social behavior, particularly in the nation's
urban settings where “deviancy” and disorder seemed more recognizable and,
therefore, apparent. There, the police were generally charged with the
maintenance of order, the suppression of vice an unseemly behavior, as well as
a variety of other duties that helped to strengthen the communal sense of stability
and well-being. While the means employed to enforce the law could take many
forms, and despite the fact that attitudes toward methods of enforcement often
reflected differences in perspective, social standing, and place of residence,
recognition of a direct correlation between successful policing and the influence
of other sources of social control - family, church, and a strong law abiding ethos
- was widespread.7 When this association was, therefore, instrumental as both a
defining characteristic of the police a role in society and a fundamental consideration in the latitude accorded local law enforcement in the reinforcement
6 David Ralph Johnson. The Search For An Urban Discipline: Police Reform As A Response To Crime In American Cities, 1800-1975 (Chicago: The University of Chicago. 1972), 183-184. 7 Peter K. Manning, “The Police: Mandate, Strategies, and Appearances,” Edited by Jack D. Douglas, Crime and Justice in American Society (New York: The Bobbs-Merrill Company, Inc., 1971), 167.
69 of social values and norms that were central to the well-being of the communities they served.8
Following the Civil War, however, changes in the nation's economy,
industrial base, and population combined to accelerate a demographic shift to
that favored urban growth and expansion. Cities were transformed into more
densely populated and more ethnically and socially divided environments in
which geographic mobility, unrestricted commercial enterprise, and a growing
sense of disorder seemed to undermine the influence of traditional social
structures and conventions, the very premise upon which traditional methods of
policing and order maintenance operated.9 The changing geography and ethnic composition of the city's neighborhoods presented an enormous challenge to urban police forces. On one level, effective policing was increasingly handicapped by the absence of the organizational and technical means with which to adjust to the changing nature and pace of life in the nation's cities.10
Police organizations were generally small in number, badly equipped, and poorly served by their members who lacked training and worse, sometimes even an aptitude for the work itself. The police were generally divided between administration and patrol functions and lacked the capacity to absorb change, given their insularity and political ties. Police forces could rarely, except in those instances when they were confronted with riotous violence, be fully mobilized, a
8 Herman Goldstein, Policing a Free Society (Cambridge, MA: Ballinger Publishing Co., 1977), 33; Haller, Historical Roots, 304. 9 David Johnson and Ralph Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800-1887 (Philadelphia: Temple University Press, 1979). 3-5. 10 James Lardner and Thomas Reppetto, NYPD: A City and Its Police (New York: Henry Holt and Company, 2000), 201.
70 task made more difficult by the absence of effective systems of communication that could facilitate coordination and the deployment of their manpower resources. The growth of the city naturally resulted in the expansion of the area
for which the police were responsible, a task which proved enormously difficult in
light of the inadequate numbers of officers available and their inability to adapt
organizationally or to acquire the technical resources they needed to function
more effectively over a vastly expanded jurisdiction.11
The Political Context of Local Policing
On another level, the very status of the police as enforcers of the law was
rarely certain. Policing itself was a relatively new concept, and the mere
presence of the police did not automatically convey any assurance regarding
their impartiality, their knowledge of legal procedure, or even their purpose. If the
term “police” carried “an inherently public connotation, . . . a form of power
wielded by the state,” state and local authorities were rarely hesitant to delegate
such powers to private corporations, which were thereby commissioned to
maintain order, resolve conflicts, and suppress varying degrees of criminal
behavior as they saw fit and with all the means at hand, including eviction and
banishment.12
Police organizations thus possessed a well recognized political dimension
through which local governments, themselves subject to the give and take of partisan politics, provided policy direction and exercised overall supervision. This
11 Lardner and Reppetto, NYPD, 34-35; Samuel Walker, A Critical History of Police Reform: the Emergence of Professionalism (Lexington, Mass.: Lexington Books, 1977), 15. 12 Kevin Kenny, Making Sense of the Molly Maguires (New York: Oxford University Press, 1998), 108.
71 relationship and its practical implications placed a significant strain upon the cohesiveness of police organizations, their methods of enforcement, and their immunity from outside influence. Since police forces were subject to direct political influence, they tended to be configured so as to reflect the political subdivisions, the districts or wards, of the city's administration. Within the ranks of the police, such arrangements tended to concentrate supervisory authority and even policy-making responsibility in the hands of the precinct commanders and their immediate subordinates whose priorities and general conceptions regarding the function of the police had to coincide with that of the district's political leadership.13 This relationship sensitized the upper echelons of the police to
matters of importance within party organization and to the existence of a diverse
group of interests within their precincts or command jurisdictions. The result was
a loss in the efficiency and in the uniform delivery of police services - the former
because it tended to be emphasize administrative ability and to stress extra-
official attributes such as political loyalties and the latter because it varied
noticeably depending upon the expectations of the inhabitants or the class and
ethnic makeup of the affected neighborhood.14
In those instances where police officials were employed directly by some local authority or governing body, they tended more often to rely upon their familiarity with the lives and customs of city dwellers and their own physical
13 Robert M. Fogelson, Big City Police (Cambridge, Mass.: Harvard University Press, 1977), 95- 96 14 James F. Richardson, " Police In America: Functions and Control," Edited by James A. Inciardi, and Charles E. Faupel, History and Crime: Implications for Criminal Justice Policy (Beverly Hills: Sage Publications, 1980), 215; Haller, " Urban Crime and Criminal Justice: The Chicago Case", 616-635, 630.
72 presence in the neighborhood to give them a much-needed advantage in the discharge of their duties. The degree of discretion they were permitted to exercise in the interest of maintaining order or to "prevent" criminal behavior was a significant part of routine police work. Despite the fact that the greater part of such work was conducted informally and had a questionable legal basis, individual police officers were given little guidance in applying their authority and were rarely held accountable even in those instances where force was employed.15 The use of force had long been considered an acceptable and even
necessary police procedure, so much so that it had been, among policemen and
citizens alike, an "unquestioned presumption that a burly, two-fisted knuckle-
buster who could flatten a violator would make the ideal policeman."16
Force was viewed as an essential ingredient of effective policing - not only
was it useful for punishing wrongdoers as an alternative to arrest, but it was also
regarded as a far more effective deterrent, one tacitly supported by a local public
opinion.17 As long as the police, in exercising their discretion, used no more than
a reasonable amount of force, they remained safely within the parameters of
acceptable conduct. But in this new environment, the police found themselves
increasingly called upon to maintain or to restore order among a people who
seemed indifferent toward the traditional assumptions regarding appropriate
social behavior, whose culture and language were often at variance with their
15 Goldstein, Policing a Free Society, 33. 16 Joe Domanick, To Protect and To Serve: The LAPD’s Century of War In the City of Dreams. (New York: Pocket Books, Simon & Schuster, 1994), 35. 17 Mark H. Haller, "Historical Roots of Police Behavior: Chicago, 1890-1925," Police, Prison, and Punishment: Major Historical Interpretations, Edited by Kermit L. Hall (New York: Garland Publishing, Inc., 1987), 318.
73 own, and whose conduct was unpredictable and often perceived as disrespectful.
The old strategies and tactics of deterrence, until then considered the principal means of regulating behavior, were not only failing, but were also becoming critical sources of tension and resentment among a population that was now divided along ethnic and class lines.18 The imperative of control drove police to
commit acts – unlawful punishment of arrested men, unlawful arrests or
detentions, beatings, and forced confessions – clearly in excess of their authority
and in violation of constitutional restrictions and all principles of fairness.19 The
arbitrariness of police discretion and a growing reliance upon intimidation to
ensure order seriously weakened the legitimacy of police claims of authority.
Equally troubling was their continuing reliance upon more traditional forms of
policing that failed to adequately address the growing regulatory needs of an
industrial and urban society. The fault did not lie entirely with the police. As an organization, they functioned within a political framework that was responsible for the mechanisms that made the police politically rather than legally accountable for their activities.
Over time, the police became less assertive in the task of maintaining peace among the cities' diverse populations and more accommodative in their
treatment of a multitude of competing interests and economic pursuits, some
quite illicit. Demands for the eradication of vice, for example, were generally met
18 Domanick, To Protect, 34-35; Walker, Critical History, 15; Abraham S. Blumberg and Arthur Niederhoffer, Eds., The Ambivalent Force: Perspectives On the Police (San Francisco: Rinehart Press, 1970), 3. 19 Ernest J. Hopkins, “The Police and the Immigrant,” Proceedings of the National Conference of Social Work, 59th Session, Held In Philadelphia, Pennsylvania, May 15-21, 1932 (Chicago: The University of Chicago Press, 1933), 509.
74 with police disinterest or passivity, mainly because the police lacked the capacity to suppress it or preferred, for obvious reasons, to confine it to those areas within their jurisdictions that lacked the political influence or will to compel the police to act differently. Such tolerance paid unspoken dividends, not only in the form of graft or as a means of acquiring information regarding criminals whose activities were directly targeted by the police, but also as a way of creating the very impression of restored order. If low wages and even lower status challenged the integrity of individual policemen, patronage became an acceptable, even normal aspect of police work. In some instances both employment and advancement were subject to purchase, either by outright payment or through service to local political figures and their supporters.20 Such practices did nothing to encourage
competency or career-consciousness among police officers since police
employment, held in low esteem to begin with, remained vulnerable to the
rotations in office for which local politics was known.21
The continuing presence of vice, however, represented something more
than evidence of police tolerance or laxity in enforcement. The social and technological developments that were changing the cities' geography and transforming societal attitudes and mores, had also affected the size and management of illegal markets throughout the nation's urban centers.22 The growth of these markets tended to blur jurisdictional boundaries, resisted detection, and often involved conduct that was generally consensual. The
20 Lardner and Reppetto, NYPD, 65, 116-117. 21 Herbert A. Johnson and Nancy T. Wolfe, History of Criminal Justice, 2nd Ed. (Cincinnati, OH: Anderson Publishing Company, 1996), 224. 22 Morton Keller, Regulating a New Society: Public Policy and Social Change In America, 1900- 1933 (Cambridge, Massachusetts: Harvard University Press, 1994), 112.
75 growing organization and sophistication of crime, its wealth, and its connections with powerful business interests quickly attracted the attention of political circles which were able to offer the benefit of their influence and protection in exchange for financial and constituent support. These ties to mainstream society seriously compromised the crime suppression function of the police and underscored one of the basic realities of contemporary policing, that "coping with crime was not a one dimensional problem which involved finding the most effective method of apprehending and punishing criminals, [but] . . . encompassed multiple considerations, among which was the independent ability of criminals to resist or influence the outcome of any effort to deal with them."23
Growing public disenchantment led to increased pressure for change and
a growing hostility toward crime and disorder, the latter perceived primarily in a
moral and social context. Public intolerance of criminal activity, however, was
not only driven by growing revulsion against the coarseness of public life. It was fueled, as well, by changing cultural images of the very nature of social control in an urban and industrial society.24 As crime became more threatening, both to
public order and prevailing moral standards, the context within which the public
construed the process of crime control was itself transformed. By 1900, much of
the nation's urban population had been treated to a series of exposes involving
evidence of widespread graft and political patronage in the ranks of the police.
Revelations such as these, often the consequence of intra-party struggles or an
23 Johnson, Policing the Urban Underworld, 184. 24 Gary T. Marx, Undercover, Police Surveillance In America (Berkeley: University of California Press, 1988), 33.
76 especially divisive election campaign,25 symbolized much that was negative and
corrupt about urban life, but they did not affect the political orientation of policing, nor result in meaningful reform of the machinery of law enforcement.
Raising Expectations: Police Reform and the Progressive Age
In the midst of the new social and economic realities then gaining prominence at the end of the 19th century, organized groups, seeking moral change or administrative reform, began to articulate their demands and to press them upon local and state government officials. The success they achieved was soon to be measured not only by the legislation they promoted and whose enactment they oversaw, but also by the degree to which their subsequent involvement in the implementation and enforcement of these laws became an acceptable and recognized feature of public administration.26 The influence they
exercised was derived in part from their grasp of the changing context in which
criminal activity had begun to occur and from their ability to inject into the public
discourse on crime a wider view of society's needs and a more compelling
argument regarding the legitimacy of a broader social and governmental role”.27
As the public’s scrutiny intensified, the political response to organized criminal activity broadened under the reformers’ remedial efforts to include an array of public and private organizations in a multi-faceted assault upon the conditions - social, economic, and political - that were believed to contribute to the lawless and corrupt behavior they were united in condemning.
25 Andy Logan, Against the Evidence: The Becker-Rosenthal Affair (New York: The McCall Publishing Company, 1970), 181-183. 26 Raymond Moley, Politics and Criminal Prosecution (New York: Minton, Balch & Company, 1929), 230-231. 27 Keller, Regulating, 155.
77
One source of the tension that existed between the reformers and their opponents concerned the function and control of the police. Police ineptitude and graft had attracted a strong measure of criticism from the reformers and those who criticized the police for their ties to organized criminals and the corrupt political organizations allied with them. Despite their sensitivity to the course of local politics, urban police forces had grown more self-serving in the execution of their responsibilities and increasingly inflexible in dealing with the appearance of new and sophisticated forms of crime, a condition that stood in marked contrast with the more modern trends unfolding around them. The demands of an increasingly modern society had not only encouraged the expansion of governmental regulatory power, but resulted in a proliferation of new agencies, specialized courts, and commissions which, by their combined effect, altered the political environment within which the police functioned. Law increasingly became an instrument of policy, applying new standards of conduct purportedly in the public interest and introducing new criminal sanctions to ensure strict observance. The coercive power of the police now became recognized in this new regulatory environment as an indispensable instrument by which to make the law more meaningful. The status of the police thus began to change. Police accountability was no longer to be a purely political determination, but became increasingly viewed as a process which would involve several sources of authority, among them, new regulatory agencies, more powerful executives, and the courts.
78
The reformers may be said, therefore, to have laid the foundation upon which the future maturation of the police would take place. As an institution, the police would increasingly claim a life and an importance of their own, independent of the problems for which they were responsible.28 While the
reformers success was neither complete, nor lasting in some of the more
important respects, and the influence of politics remained a dominant feature in
local policing, their organizational contributions were of some significance and
marked the beginning of a more systematized administration of policing. Even
though the bureaucratic structures the reformers created did little to improve the
working environment of the police, they did encourage some degree of
innovation especially in relation to the more traditional methods of police operations.29 In failing to achieve their principal goals, it had become apparent that the reformers had relied too heavily upon administrative reforms that had yet to be fully incorporated into policing as a practice and all too often were inclined to rely upon the chiefs of the police organizations to effect the fundamental changes they had sought. Not until the 1920's, when evidence of law enforcement's failure to adjust to new and increasingly threatening forms of criminal organization and to rising public expectations regarding security and order, would these institutional deficiencies become matters of political significance, their disparities in resources and the restraints imposed by
considerations of political jurisdiction especially, matters of grave concern.
Collaboration and the advantages to be realized by those willing to engage in it
28 Goldstein, Policing a Free Society, 33. 29 Fogelson, Big City Police, 95-101; Walker, Critical History, 136.
79 would continue to lack a mutually coherent and sustaining political logic and remain an elusive goal. In the end, it would require development within police organizations of a common standard of professionalism derived in part from increased organizational autonomy, promotion of uniform procedures and management policies, and increased emphasis upon their common role as
"crime fighters," advances that would only become possible with the evolution of federal crime policy.
Federal Law Enforcement: Systematizing Expediency and Adaptation
Enforcing federal law presented few challenges as long as the statutes to be enforced reflected what were perceived as a legitimate, if not exclusive, federal interests. In 1863, for example, Congress created an entirely new office to ensure collection of the revenue, and, ten years later, directed the post office to prohibit use of the mails for the dissemination of obscene literature. Though
neither kind of violation necessarily conformed to contemporary notions of crime,
congressional action in each instance was recognized as vital to the preservation
of government and its powers under the constitution and was, therefore, a
suitable matter for federal attention. But there were so few federal statutes to which criminal penalties actually attached that the retention of no more than a
few law enforcement personnel seemed hardly justified.30 Given the
pervasiveness of the public's ambivalence toward governmental power and the
30 Richard Harris, Justice, the Crisis of Law, Order and Freedom In America (New York: E. P. Dutton & Company, Inc., 1970), 33.
80 respect with which the nation’s federalist traditions were regarded, Congress was especially alert to even the suggestion of expanded federal criminal jurisdiction.
New concerns and a growing of responsibilities, however, heightened congressional interest in preventing the use of interstate commerce to the detriment of the public's safety, health, or morals. The resulting expansion of federal criminal law thus soon added a new dimension to the definition of criminal behavior, induced significant changes in the manner in which the government pursued and prosecuted violators of the law, and gave new-found importance to the collaborative abilities of federal and local law enforcement officials. The national government's capacity to enforce its laws evolved under circumstances
that reflected the broad scope and diverse interests of an entire nation.31 Federal criminal legislation was practically never the result of congressional initiative alone. It tended to be reactive in nature and politically influenced: in effect, representing the narrow concerns of its proponents or emerging from the controversies which had originally prompted their consideration.32 This meant
that whenever federal laws was passed, they were enacted in a largely
piecemeal and disconnected fashion, a practice that coincided with the continuing and uneven development of the federal government's powers and responsibilities. As that process advanced, so, too, did the government's entanglement in the more difficult and controversial efforts to develop effective
31 William J. Vizzard, In the Cross Fire: A Political History of the Bureau of Alcohol, Tobacco, and Firearms (Boulder: Lynne Reinner Publishers, 1997), 18-19. 32 Gerald G. Ashdown, “Symposium: Federalism and the Criminal Justice System: Introduction: Macro and Micro Evaluation of the Federalization of Crime,” 98 West Virginia Law Review (Spring 1996): 759-813, 794; M. Beale, "Federalizing Crime: Assessing the Impact On the Federal Courts," The Annals of the American Academy of Political and Social Science 543 (January 1996), 40-42; Martin Conboy, “Federal Criminal Law” In Law, A Century of Progress, 1835-1935, Vol. 1. Edited by Alison Reppy (New York: New York University Press, 1937), 301.
81 policies and methods of enforcement based upon such legislative enactments.
As it became more complex and expansive, the task of ensuring that federal law would be observed could no longer proceed as haphazardly as it once did and
began to demand a far more systematic approach from all branches of the
federal government involved.
Prior to the Civil War, the federal government's involvement with policing,
aside from its responsibility for the preservation of order within its territorial
holdings, was focused primarily upon the affairs of government. As
governmental services grew in size and importance, so, too, did their vulnerability
to theft, embezzlement, and other crimes that affected their operation. Local
police officials, given the jurisdictional limitations that applied, could offer little
assistance in matters involving federal property or activities. As a result, the
burden of policing its own operations fell naturally, almost incidentally, upon the
federal departments affected. This proved to be a difficult task given the
decentralized and dispersed nature of government operations. Nor was it made
any easier by the very nature of federal employment, dominated as it was by
considerations of patronage and the absence of uniform and standardized
methods of operation. Federal employees, the majority of whom worked for the
post office, were indebted to local patrons for their positions and appointed or
hired on the basis of their loyalty to party or faction. In the absence of any real
bureaucratic structure or the possibility of advancement, they were expected to
do little more than to "conduct themselves in a manner appropriate to the
82 convention of that day."33 Such conditions made it difficult, if not impossible, for
the federal government to introduce a hierarchical structure that would facilitate
centralized direction and the development of organizational discipline and formal
procedure. The situation was further complicated by the extent to which the
government relied upon contractual arrangements for the delivery of services
which removed important functions from the day to day supervision of
governmental officials. In the 1870s and 1880s, the New York customs house,
the largest of all federal offices, provided, for example, the federal government
half of its total revenue, but was controlled by a local political machine that was legally entitled to half of all the fines and forfeitures assessed through that office.
Such practices were difficult to monitor given the involvement of political elements that depended upon those kinds of financial arrangements for the support and to whom such patronage opportunities offered the incentives necessary to maintain party discipline and advantage.34
What concerns the different federal departments did have regarding crime
suppression were, therefore, directed inward and resolved, in all but a few
instances, administratively. To reduce the opportunities for bribery, collusion,
and other troublesome behavior, the government adopted a number of
measures, including audits and inspections that were designed more as a
deterrent to wrongdoing than as a policing function.35 On those occasions when
33 Richard R. Johnson, Spreading The News: the American Postal System From Franklin to Morse (Cambridge, MA: Harvard University Press, 1995), 129. 34 Michael Schudson, The Good Citizen: A History of American Civic Life (Cambridge, MA: Harvard University Press, 1998), 150-152. 35 Arthur C. Millspaugh, Crime Control by the National Government (New York: Brookings Institution, 1937. (Reprint) New York: Da Capo Press, 1972), 36.
83 malfeasance within the government became widely publicized and the level of venality in office considered scandalous even by the looser standards of the day, more extraordinary measures would be employed to investigate, by means of specially appointed prosecutors, and to deflect any potential adverse political
consequences. In 1874, during the Grant administration, evidence of widespread corruption in government forced the President to replace his secretary of treasury with a man whose reputation as an accomplished administrator and a
distinguished lawyer whose integrity was beyond reproach. In many ways,
Benjamin H. Brewster, a fearless prosecutor of the Ku Klux Klan in the
Reconstruction South and the nation's first solicitor general, personified those
qualities that represented the ideal among officeholders. Independent of mind,
ambitious, and capable of sound and incisive judgment, Brewster introduced new
administrative policies within the Treasury Department and used his authority in
1875 to establish supervisory authority over all thirty two of the Internal Revenue
Service offices outside of the nation's capital. As a result of the audits he initiated and the investigations he directed, federal grand juries indicted some
350 people, among them scores of revenue agents and private distillers who had conspired with one another to evade the payment of taxes.36
Brewster’s work did much to raise expectations regarding the level of
integrity associated with public office and competent public administration, but such accomplishments remained exceptional and, for any party in power, politically risky given the uncertainty of their outcome. The growing diversity and reach of the government’s operations eventually required not only a more
36 Jean Edward Smith, Grant (New York: Simon and Schuster, 2001), 526.
84 consistent method of scrutinizing its own internal operations, but, of increasing importance, the development of an organizational capacity to perform its investigative or enforcement role beyond the realm of government administration.
That role, increasingly defined by interests outside of government intent upon expanding the scope of federal legislation, forced the government to accept a growing number of new enforcement responsibilities. In its response to such pressures, however, Congress displayed a marked preference for a regulatory approach to enforcement with its emphasis upon selectivity in purpose and specialization in execution. That preference was motivated not only by a marked distaste for spending large sums of money for a comprehensive enforcement program, but also by the prevailing mindset regarding the prevailing dominance of local law enforcement and the general policing power that had been conferred upon it by the Constitution. The growth of the federal government’s regulatory powers would have a profound and lasting impact upon the framework within which all future federal crime suppression policies would be formulated and implemented.37 The choice of regulatory enforcement over actual policing, however, as reflected in a growing number of congressional enactments, was not necessarily free of political considerations or administrative repercussions.
Traditional patterns of federal enforcement activity, which were neither replaced, nor modified by these changes in the law, were often challenged by the slapdash manner in which federal jurisdiction was often extended. How such legislation was to be implemented or enforced was rarely a matter of congressional concern
37 David R. Johnson, American Law Enforcement: A History (St. Louis, MO: Forum Press, 1981), 73; Vizzard, In the Cross Fire, 18, 79.
85 and all too frequently left to the discretion of the executive branch. From the very beginning, therefore, the daunting operational handicaps that these practices posed to a fledgling, largely under-funded, and functionally divided federal bureaucracy served only to dampen expectations concerning the government’s ability to perform the new responsibilities to which it was assigned. Complicating matters further was the fact that the older patterns of federal enforcement, excluding those applicable to the federal territories, were notoriously inclusive in nature, which is to say they tended to reflect largely partisan concerns and a desire to accommodate local political interests. In this manner, the early years of federal crime control policy implementation became infused with considerable irony: laws providing for the enforcement of the Revenue Act, for example, were clearly essential in the funding of the national government’s operation, but the process of enforcement that evolved, in view of the patronage incentives it
afforded, remained a matter of equal significance to the major political parties
and played an important role in the fulfillment of their partisan ambitions.38
In the aftermath of the Civil War, the responsibility for ensuring compliance with laws that afforded some measure of protection for the political rights of former slaves fell upon the newly created Department of Justice whose subsequent efforts to combat widespread acts of terrorism and intimidation were crippled in the short term by insufficient or misallocated appropriations39 and, in
38 Wilbur R. Miller, "The Revenue: Federal Law Enforcement In the Mountain South”, Journal of Southern History 55, no. 2 (May 1989):195-216, 214. 39 William Gillette, Retreat From Reconstruction, 1869 - 1879 (Baton Rouge: Louisiana State University Press, 1979), 35-42, 48-49.
86 the longer-term, by the absence of a clear and sustainable mandate.40 The
Department’s investigative capabilities were woefully inadequate, and the U.S.
Marshals upon whom the burden of policing actually fell were hampered both by their lack of manpower and by the general hostility with which they were confronted in the execution of their enforcement duties. The Department of
Justice’s efforts, moreover, to coordinate the activities of its district prosecutors and marshals never truly evolved, in organizational sense, beyond an informal exchange of communications and the issuance and receipt of directives. All decisions with respect to the investigation of crimes and the filing of charges were left to the discretion of the local district attorneys, who were often overwhelmed by the demands made upon them and conditions that severely depleted their resources and reduced their overall effectiveness. The
Department’s efforts to enforce the law, though not entirely unsuccessful, were ultimately doomed to failure.
By 1873, unable to obtain adequate local support for its enforcement activity and sensing, as did many in Congress, that the public’s enthusiasm for such aggressive measures was passing, the Department began to scale back its efforts to secure convictions under the enforcement acts.41 The Justice
Department’s experience in the Reconstruction South included some of its first
encounters with a more systematized and pernicious practice of subjecting
federal marshals engaged in the performance of their duties to the jurisdictional
authority of state courts, many of which were guided by the hostility of the local
40 Nieman, Promises to Keep, 83-85. 41 Foner, Reconstruction: America’s Unfinished Revolution, 528.
87 communities affected. The issue had become one of rising concern prior to the outbreak of the war, especially since the posture assumed by the government was one on non-interference, a practice which left the marshals fairly much on their own to face these challenges to federal authority. The federalist principles of divided authority often confounded local federal officials, and continued to do so until the onset of the Civil War, the outcome of which contributed significantly to the doctrine of federal supremacy. Until, however, the Supreme Court resolved this issue in favor of the federal government in 1889, federal enforcement officials were often forced, amidst the “prejudice and passions of whole communities,” to resolve these issues through the slow and often tortuous legal process of removal, where the cases brought against them in state courts were transferred by court order to the protective embrace of the federal
judiciary.42
Federal enforcement responsibilities had long been configured in such a
way as to encourage efforts to enlist the cooperation of local enforcement
resources. In 1875, and for a period of time thereafter, the state of New York had
been allowed to deputize agents of the New York Society for the Suppression of
Vice to enforce not only state, but federal obscenity laws as well.43 Even more overtly inclusive in its enforcement scheme was the federal Pure Food and Drug
Act which explicitly authorized state health, drug, or agricultural officials to refer
cases of misbranded or adulterated foods directly to the attention of federal
42 Stephen Edward Cresswell, Mormons & Cowboys, Moonshiners & Klansmen: Federal Law Enforcement In the South and West, 1870-1893 (Tuscaloosa: The University of Alabama Press, 1991), 16; Cummings and McFarland, Federal Justice, 368. 43 Andrea Tone, "Black Market Birth Control: Contraceptive Entrepreneurship and Criminality In the Gilded Age," The Journal of American History 87, no. 2 (September 2000), 442.
88 prosecutors. But Congress could not indefinitely satisfy its regulatory responsibilities in such a fashion. Any attempt to do so was sure to invite gross disparities in the enforcement of federal policy and, in the absence of any authority to compel state officials to act uniformly or with equal diligence in the performance of such joint responsibilities,44 Congress was left fairly much to its
own devices in providing for the enforcement of federal law, remaining satisfied
to continue to delegate such responsibilities to the departments of the executive
branch over which Congress routinely exercised budgetary discretion and
administrative oversight.45 Within the departments of the executive branch,
however, crime control as a regulatory device lacked the importance or more
compelling characteristics that might have made it something other than
incidental to a department or agency's primary task. In the context of federal
operations, crime suppression, aside from the self-scrutiny it had traditionally
implied within federal operations, was considered more a means than an end: one among several available options that could be used to realize the regulatory objective to which they had been assigned.46 On an operational level, federal
enforcement was regarded as an ancillary function, lacking any independent
identity or importance of its own and without any separate administrative
authority or clearly defined goal. Departmental enforcement initiatives, much like
44 Prigg vs. Pennsylvania (1842) 15 Pet. 539 45 Johnson, American Law Enforcement, 74. 46 Millspaugh, Crime Control, 34.
89 departmental regulatory policy, were implemented in a manner essentially designed to warn or to control rather than to suppress certain kinds of conduct.47
Congressional regulatory enactments offered little guidance concerning
questions of implementation and tended to distribute newly assumed
responsibilities among several different departments and agencies. In the
absence of any specific guidance regarding the strategies or the procedures to
be adopted, government officials, almost by default, acquired considerable
discretion to determine congressional intent and to decide, independently from
their counterparts elsewhere in the federal bureaucracy, what priorities would be assigned in the process of policy implementation and what methods would be utilized toward that end.48 Under such circumstances, confusion and conflict
where practically guaranteed. The overall consequences of such practices
meant that the federal government's enforcement functions were widely
dispersed among existing federal agencies, where they were subject to different
bureaucratic environments, organizational structures, and the peculiar and often
unique operational and political concerns of the Department of which they had
been made a part. Federal criminal legislation, beyond that needed for the
government’s own protection or purposes invariably reflected the issues or
controversies that had originally prompted their consideration and enactment.49
These, in turn, often contained a bewildering mixture of unresolved questions involving the distinctions to be made between purely local and federal interests.
47 Millspaugh, Crime Control, 30-31, 34; Robert M. Crunden, Ministers of Reform: The Progressives' Achievement In American Civilization, 1889-1920 (Urbana: University of Illinois Press, 1984 [1982]), 196. 48 Johnson, American Law Enforcement, 66, 68. 49 Conboy, “Federal Criminal Law,” 301.
90
What, it seems, had once been seemingly distinguishable along clear jurisdictional lines had become gradually obscured by the growing complexity of all facets of national life.50
For the individual federal departments involved, the problems of ensuring
compliance with the provisions of newly passed laws almost always raised
concerns, fiscally and organizationally, that were made increasingly a challenge
by the department’s own growth and the increasing complexity and diversity of it
area of responsibility. As the departments evolved, they soon found it necessary,
despite their distinctive histories and different operational orientation, to adopt
new methods of organization and a more centralized and standardized approach
to management. Where modern communications had facilitated the
consolidation of the government’s far-flung operations and had encouraged the
integration of governmental operations by making tighter bureaucratic control
possible, the creation of specialized bureaus was soon recognized as a more
efficient approach to the departments’ growing list of functions. In such a
bureaucratic environment, the challenges associated with regulatory enforcement
– their increasingly technical and complex natures, the legal and administrative
questions raised in connection with their interpretation and application – became
more easily recognizable and, in their demand for attention, increasingly
regarded as legitimate concerns.
In time, the necessity of reconciling policy objectives with the realities of a
department’s enforcement and bureaucratic capabilities proved increasingly
50 Neil H. Cogan, “The Rules of Everyday Life,” 543 The Annals of the American Academy of Political and Social Science (January 1996): 97-102.
91 difficult. New or growing enforcement responsibilities inevitably demanded larger investments of time and personnel and were, from a purely bureaucratic standpoint, especially risk-prone and of little immediate benefit. Efforts to detect and to deter violations of the law invariably depended upon the use of surveillance, informants, and local law enforcement resources over which the
Department could exercise no control, in short, upon methods and tactics that were questionable in themselves and that, in their emphasis upon secrecy and expediency, ran counter to established and respected bureaucratic norms.51 The
most promising solution to such concerns, it would eventually be decided, lay in
the introduction of tighter forms of control and accountability: a more
comprehensive level of direction to ensure compliance with internal rules and
procedures, a separate office within which did more easily coordinate the
enforcement function and to oversee the work of those so engaged, and through
which standards of appropriate behavior, a sense of hierarchy, and a
commitment to the department's goals and interests could be assured. It would
be some time before these special units would evolve into more established
offices with recognizable areas of expertise and the autonomy they would require
to set their own priorities and manage their own affairs.52 In the meantime, they
would have to contend with the constitutional and legal precariousness of the
authority granted them, to steel themselves against the controversies that
accompanied and were often generated by the expansion of federal jurisdiction,
51 David Ralph Johnson, Illegal Tender: Counterfeiting and the Secret Service In Nineteenth- Century America (Washington: Smithsonian Institution Press, 1995), 93. 52 Robert M. Fogelson, The Professionalization of the Police: An Essay On the Limitations of Institutional Change In Urban America, 1890-1970 (Cambridge: Massachusetts Institute of Technology, 1970), 15.
92 and continue to rely upon local law enforcement for assistance, the latter a feature made increasingly important by the growing cross-jurisdictional nature of crime and the greater technical and organizational capabilities of local law enforcement.
Even in those instances where Congress had been motivated to provide for the punishment of certain offenses, as it was in 1790, it could not be counted
upon to address some of the Departments’ most rudimentary concerns regarding
the application of law or the federal courts’ ability to adjudicate their cases. Even
though it had established two basic categories within which it grouped all criminal
penalties (crimes against the government and crimes taking place in areas under federal control), Congress had failed to adequately define the elements of the offenses to which the listed punishments applied. This oversight, which reflected a deeply held bias favoring state courts and heir preeminence in criminal matters, left the federal district courts with little recourse, in the absence of more specific
Congressional direction, other than to rely upon the common law for guidance in adjudicating criminal cases.53 Not all federal courts were inclined to pursue this
alternative, and the controversy that arose from the continuing application of common law rules, essentially little more than equitable principles informed and controlled by historical usage, to broach the gaps in federal law swiftly divided
the federal bench. It was not, in fact, until 1812 that this issue was first
presented to the Supreme Court, which could find no legal basis upon which to
sanction the use of common law jurisdiction in matters over which the district
53 Surrency, History of the Federal Courts, 112, 118.
93 courts’ authority did not extend.54 In their history of the Department of Justice,
Homer Cummings and Carl McFarland attribute the Court’s reluctance to
approve the use of common law jurisdiction in criminal cases to several factors,
including the common law’s close historical association with some of the more
negative features of the nation’s colonial past and the constitutional questions it
raised but left unanswered. The latter was of special concern for Attorney
General Richard Rush, much as it had been for his predecessor.
Rush believed that the framers of the Constitution had acted very deliberately in assigning the law-making functions of government to the
legislative branch, in part to avoid the excesses and judicial abuses experienced
by the colonies under monarchial rule. Such caution, however, could easily be
overridden whenever a federal court acted on its own discretion to apply what
was essentially judge-made law, co-opting, in effect, the law-making authority that the federal legislature alone possessed. In 1816, faced with the prospect of presenting an argument to the Supreme Court premised entirely upon common
law jurisdiction in a criminal case, a position Rush believed to be legally
untenable, the Attorney General simply conceded that the federal district court’s
criminal jurisdiction was not only dependant upon, but strictly limited to those
offenses that were defined by statute.55 Rush’s interpretation of the Constitution
was deemed to be of special significance, for not only was he a much respected
adviser to the head of the executive branch, President James Madison, but he
was often called upon, as was then the custom, to provide legal advice to
54 United States v. Hudson, 11 US 32 (1812); Conboy, “Federal Criminal Law,” 306-308. 55 Homer S. Cummings and Carl McFarland. Federal Justice (New York: The Macmillan Company, 1937), 464-465.
94
Congress, a role that clearly underscored the weight attached to his opinions.
The rejection of common law within the federal court system set in motion a campaign to provide the federal government with its first comprehensive criminal code. Until that time, prosecutors and judges had been unable to charge or establish degrees of crime, a situation that resulted in considerable disparity among the federal districts and which eliminated the deterrent effect of the court’s judgments. Early compilations of federal law were rendered virtually useless by their tendency to report enactments in chronological order, forsaking such helpful practices as categorization or noting when the laws in question had been repealed.56 In 1897, Congress appointed a commission to review and
codify the criminal and penal laws of the United States, an assignment that grew
over time to include additional task, but which produced the first “modern” federal
criminal code in 1909. The 1909 revision was far more comprehensive than any
previous effort, but more importantly, it provided federal prosecutors, for the first
time, the organization and accessibility that had long denied them as a group the
consistency and coherence that could make their efforts on behalf of the
government more rational and responsive to the nation’s enforcement needs.57
Bridging the Jurisdictional Gap: The Exercise of a “Supplemental” Power
Given the authority with which they were vested under the Tenth
Amendment, the states had been relatively free of the constitutional constraints
56 William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legacy, 1889- 1932 (New York: Bobbs-Merrill Company, Inc., 1996), 340; Cummings and McFarland. Federal Justice, 469. 57 Martin Conboy, “Federal Criminal Law,” Alison Rippy, Ed. Law, A Century of Progress, 1835- 1935, Vol. 1 (New York: New York University Press, 1937), 311.
95 that had limited the scope and so profoundly influenced the development of federal law. Both criminal law and criminal process had evolved under conditions that differed from state to state, so much so, in fact, that the law itself had become a symbol of values and ideals that were believed to be uniquely characteristic of each state.58 As the country transitioned, however, into a more
thoroughly interconnected and economically interdependent nation and as the
responsibilities of the states were themselves transformed, these distinctions and
the jurisdictional boundaries that helped define them proved increasingly
vulnerable to a wholly new set of social, technological, and economic realities.
Nor were the federal courts especially sympathetic to the growing plight of the
individual states. Attempts on the part of the federal bench to refine and apply its
more restrictive view of the jurisdictional reach of state law thus threatened to
undermine the claims of sovereignty that were supporting state initiatives
respecting a host of public concerns, the control, manufacture, and distribution of
intoxicating beverages constituting one of the more politically charged issues with
which the states were then confronted.
The states’ efforts to address the issue presented by the interstate
transportation of alcoholic beverages by means of their police powers led
inevitably to enforcement actions directly affecting the flow of interstate
commerce, an exercise of their discretionary authority which had long been
sanctioned by the Supreme Court.59 In the absence of any superseding federal
58 Kermit L. Hall, The Magic Mirror: Law In American History (New York; Oxford: Oxford University Press, 1989), 175-176; David J. Bodenhamer, Fair Trial: Rights of the Accused In American History. (New York; Oxford: Oxford University Press, 1992), 49-54. 59 The License Cases (1847) 5 How. 504.
96 act or interest, the Court had earlier concluded, Congress’s power to regulate interstate commerce did not, by itself, preclude the state from acting in its stead where state interests were directly affected.60 In 188861 and again in 1890,62 however, the Supreme Court, now reflecting an entirely different judicial philosophy, reversed itself and, by prohibiting the states from doing anything that might impair or burden the flow of interstate commerce, succeeded in placing the viability of the states’ regulatory policies respecting alcohol in serious jeopardy.
Congressional reaction to the resulting crisis was immediate and clearly designed to restore to the states the discretion they had once enjoyed to prohibit the importation of what were otherwise articles legitimately moving through the channels of interstate commerce. If, Congress reasoned, the federal government could neither assume the policing authority of the states, nor delegate a power reserved to it alone under the constitution, it could still remove any “impediment” to the enforcement of state prohibition laws by simply altering the status of the articles in question following their arrival within the affected states jurisdiction.
The Wilson Act,63 while adjudged constitutionally sound by the Supreme Court
the year after its enactment,64 would be undermined by subsequent Court
decisions that would, much to the frustration of the Act’s sponsors, restrict its
practical application, but not before it and the Supreme Court’s decision
upholding its constitutionality had made an important contribution to the
extension of a newly emerging federal police power.
60 Cushman, Studies In the Police Power of the National Government, 401. 61 Bowman v. Chicago and Northwestern Railway. Co., 125 US 465. 62 Leisy v. Hardin, 135 US 100. 63 Act of August 8, 1890, 2 Stat. L. 313. 64 In re Rahrer, 140 U.S. 545 (1891).
97
What truly distinguished the Wilson Act from the Congressional regulatory
legislation that preceded it was the fact that it also represented an outright
assumption of responsibility for the public’s welfare that was similar in certain
important respects to the powers claimed by the individual states. Congress’s
concerns regarding the condition of the nation’s moral health were not unlike
those shared by its constituents, but its readiness to take such affirmative action
to address problems that extended beyond interests of a clearly federal nature
was virtually without precedent.65 New conceptualizations such as these
regarding the responsibilities of government were obviously representative of the
far more profound changes that were then taking place in the nation’s political
environment. They also reflected a growing determination among reform groups
to ensure that the full range of government power, representing all levels of
governmental entities, would be available for the purpose of improving public
morals and protecting the nation’s political values. That they were able to
accomplish this goal was, to a large extent, evidence of the success they had
achieved in redirecting attention away from the strictly moral ramifications of the
activities they condemned - matters considered to be more properly the concern
of the states and their local entities - to their purely commercial aspects and the implications such activities might have for the continuing vitality of the nation’s
federalist structure and its democratic traditions.66 By further expanding and
rationalizing its authority under the commerce clause, Congress clearly believed
that is was acting in a manner entirely consistent with its use of yet another of its
65 Friedman, Crime and Punishment In American History, 71. 66 Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, And the Polity, 1880-1920, 148-154.
98 enumerated powers, the postal clause, in the interest of preserving the effectiveness of state regulatory power.67 In validating the Wilson Act, the
Supreme Court had tacitly recognized what amounted to a new justification for
the exercise of federal power, which, while still subject to significant constitutional
constraints, was, in many ways the “equivalent” of the traditional police powers of
the states.68 But unlike that of the states, this relatively new federal police power
could not be exercised in its own right, but only as an extension of some
constitutionally delegated power, in this instance, Congress’s oversight of
interstate commerce.69
In retrospect, it becomes clear that the Supreme Court, despite its anti-
regulatory predilections, was generally far more inclined to sanction the use of
Congress’s implied powers where the policies in question were specifically designed to suppress immorality or crime.70 As interstate commerce became
ever more complex - involving a greater number and diversity of activities and interests - it also became increasingly susceptible to misuse. Even as it struggled to impose restrictions upon the regulatory powers of government, the
Supreme Court would repeatedly demonstrate that it was prepared to take
exception for those activities that threatened the nation’s well-being, approving
federal action that not only denied certain products access to interstate
commerce, but also allowing the use of criminal sanctions to ensure that such
67 “The [act] in all its forms reflected, complementary to state efforts, federal legislation based on the postal power that banned lottery materials, obscene works, and fraudulent inducements from the mails.” Ibid., 84. 68.Ibid., 188. 69 Waltenburg and Swinford, Litigating Federalism, 12-13. 70 Waltenburg and Swinford, Litigating Federalism, 12-13; Schmidhauser, The Supreme Court As Final Arbiter In Federal-State relations, 1789-1957, 130-131
99 prohibitions would deter or punish those violating the law.71 Thus did it happen,
in 1895, that the Wilson Act, passed into law ostensibly to revitalize state
enforcement authority, provided the stimulus Congress needed to take the
additional and largely unprecedented step of prohibiting the use of the interstate
commerce as a means of circumventing state law.72
The sale of lottery tickets, both as a perfectly legitimate means of raising
funds for a variety of charitable or public purposes and as a popular form of
gaming had long been a staple in American culture. By 1890, however, this
activity, now more closely identified with immigrant and African-American
communities and increasingly condemned by church groups, social reformers,
and anti-gaming organizations, had been banned in forty-three of the forty-four
states.73 Yet lotteries continued to prosper, often spread by a trade, even
international in origin, which, in effect, was immune to state policy and
enforcement efforts because of its movement through interstate commerce.
Though excluded from the mails by Congressional fiat, the growth and efficiency
of other forms of interstate transportation provided alternative means for the
delivery and distribution of lottery tickets that remained beyond federal control.
However, emboldened by the Supreme Court’s decision in the case of In re
Rapier,74 which had acknowledged the virtually unlimited authority Congress
possessed to determine what articles could be excluded from the mails as
71 Friedman, Crime and Punishment in American History, 71; Surrency, History of the Federal Courts, 120. 72 Act of March 2, 1895, 26 Stat. L. 313. 73 Morton Keller, Affairs of State: Public Life In Late Nineteenth Century America (Cambridge, Massachusetts: Harvard University Press, 1977), 509-510. 74 143 US 110 (1892).
100 potentially injurious to public morals, Congress, in 1895, completely banned lottery tickets from interstate commerce.75 Two years later, Congress enacted
additional legislation that not only prohibited the distribution through interstate
commerce of any obscene material and of any drug or article designed to prevent
contraception or to induce an abortion, but also provided for criminal sanctions, in
the form of both fines and incarceration, to be applied against all those found in
direct violation of the statute.76 Almost immediately, serious questions were
raised regarding the constitutionality of the reasoning that underlay both statutes,
that Congress, given its responsibility for the regulation of interstate commerce,
actually possessed sufficient authority to exclude, at its discretion, an article from
all avenues of interstate commerce. In 1903, however, a closely divided
Supreme Court upheld the constitutionality of the Lottery Act,77 and in so doing,
not only recognized a federal police power regulation based on the commerce
clause (“As a State may, for the purpose of guarding the morals of its own
people, forbid all sales of lottery tickets within its limits, so Congress, for the
purpose of guarding the people of the United States against the ‘widespread
pestilence of lotteries’ and to protect the commerce which concerns all the
States, may prohibit the carrying of lottery tickets from one State to another.”
(Italics added)), but also clearly identified the framework within which any future
expansion of federal power under that clause could be deemed justified (“In
legislating upon the subject of the traffic in lottery tickets, as carried on through
interstate commerce, Congress only supplemented the action of those States-
75 Act of March 2, 1895, 28 Stat. L. 963. 76 Act of February 8, 1897, 29 Stat. L. 512. 77 Champion v. Ames, 188 US 321 (1903).
101 perhaps all of them-which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits.” (Italics added for emphasis)).78
While the scope of Congress’s regulatory power under the commerce
clause remained far from clear, the Ames decision did resolve the issue that had
long questioned the availability of the commerce clause as a source of federal
police power. The Court’s decisions in such cases as Rapier and Ames would
eventually provide the government with the basis it would need to claim, in the
face of more compelling challenges to the nation’s welfare, the broader police
powers it would seek. Thus encouraged, Congress soon discovered in its
plenary powers, specifically its commerce, postal, and tax powers, the authority
that it would require to suppress all kinds of conduct to which it objected. In due
time, the Supreme Court would offer a more compelling explanation for its
change of mind when, in 1911, in answer to the constitutional challenge raised
under the 10th Amendment against Congress’s effort to suppress prostitution, it
conceded that while: "our dual form of government has its perplexities, State and
Nation having different fields of jurisdiction . . . , it must be kept in mind that we
are one people; and the powers reserved to the States and those conferred on
the Nation are adopted to be exercised, whether independently or concurrently,
to promote the general welfare, material or moral."79 In giving Congress such
powers, however, the Court had been careful to qualify or condition its exercise.
Such power, it warned, could never be used to “supersede” the states’ regulatory
78 Ibid., 188 U.S. at 357. 79 Hoke v. United States, 227 U.S. 308, 322 (1913).
102 authority, but could only be exercised for the purpose of “supplementing” them.
That the Ames decision would have far reaching effects upon the formulation of federal crime policy went without question. Less foreseeable at the time, however, was the enormous influence it would eventually have in orienting and
shaping the government’s budding enforcement machinery.80
80 Conboy, “Federal Criminal Law”, 318; Schmidhauser, The Supreme Court As Final Arbiter In Federal-State Relations, 132.
103
Chapter 3
IN SEARCH OF A MORE ORDERED LIBERTY
Like most Americans I am no lover of cops, and the consistent investigation of city forces for bribery, brutality, and a long and picturesque list of malfeasance is not designed to reassure me. However, my hostility does not extend to the state troopers now maintained in most parts of the country. By the simple expedient of recruiting intelligent and educated men, paying them adequately, and setting them beyond political coercion, many states have succeeded in creating elite corps of men, secure in their dignity and proud of their service. Eventually our cities may find it necessary to reorganize their police on the pattern of the state police. But this will never happen while political organizations retain the slightest power to reward or to punish. John Steinbeck, Travels With Charlie, 1962
Few other developments contributed as much to the environment within
which federal policing emerged as a legitimate arena for federal intervention than
did the forces of progressive reform. Among progressivism’s greatest
achievements in the years prior to the First World War was the critical support it
offered to the development of a cooperative relationship between the states and
the federal government and to the emergence of bureaucratic organizations that
would, in time, affect the very nature of that relationship. One consequence of the extraordinarily broad and dynamic scope of progressive reform was the degree to which the public affairs of local communities were systematized and the policy-making process in each increasingly centralized. Progressive reformers had intentionally sought to break the grip of traditional politics over the functioning of local government, to rid it of its provincialism and its partisanship and to make it more accountable to what they perceived as the public interest. In pursuing their ambitious reform agenda, the progressives were able to benefit,
104
therefore, from the cumulative impact of an increasing number of political
reforms: the reduction of the sizes of city councils, the election of public officials
on a citywide as opposed to a by-ward basis, the introduction of the city manager
system, the referendum, the enactment of laws that, by prohibiting corrupt
practices, established new expectations regarding the conduct of public officials.1
The overall effect of these changes, however, aside from limiting popular participation in the affairs of government, was to centralize the decision-making process, a trend that allowed the progressives to gradually draw away from the more traditional mode of governmental administration, with its limited policy- making and regulatory capabilities, and to move more deeply into “the corridors of bureaucratic expertise and bureaucratic leadership.”2
Another consequence was the increased administrative power of the states. Progressive reforms that had stressed standardization and uniformity in
administrative procedure and embraced new responsibilities and increasingly
larger jurisdictions revitalized the role of the state as a principal overseer of
public services and facilitated the extension of its authority over these new
functions of government. While progressive reforms tended to embrace the idea
of greater autonomy for local agencies - a prerequisite for the development of
such bureaucratic techniques as centralized direction, functional specialization,
and improved administration of a growing variety of services – the changes they
promoted also went hand-in-hand with the expansion of the state’s authority over
what were essentially local services and municipal government functions.
1 Diner, A Very Different Age, 209; Schudson, The Good Citizen, 165, 238; Milkis, “Localism, Political Parties and Civic Virtue,” 115. 2 Pegram, Partisans and Progressives, 217.
105
Increasingly, state legislatures assumed greater control over such matters as
education, public utilities, road and bridge construction and maintenance,
municipal financing, and the structuring of local police organizations.
Progressive-influenced legislatures established a host of new regulatory
commissions and agencies that further standardized government activities and
organized local responses to issues of health and safety.
The Progressive “Impulse”
Progressivism was to exert its greatest influence during a period of social and economic upheaval, a time of strife and turmoil of such magnitude as to be seen as nothing less than a very real and imminent threat to the prevailing social order and its defining political traditions. Probably because it was so successful in masking, for a time anyway, its complexities and internal contradictions behind an inspiring rhetoric, progressivism was able to promote the expansion of governmental power beyond its customary boundaries3 and to enlarge the public policy process sufficiently to include many new areas of concerns. Though often acting in concert, Progressives were willing to use innovative approaches to a much changed and changing social and political environment for different reasons, among them, the disruption of normal living patterns, the unraveling of customary social arrangements, and the distortion of a more familiar scale of enterprise brought about by the appearance of powerful business combinations and industries. If the progressives seemed especially eager to find ways to reinvigorate and to reassert what they saw as essentially American ideals, they
3 David P. Thelen, The New Citizenship: Origins of Progressivism In Wisconsin, 1885-1900 (Columbia: University of Missouri Press, 1972), 334-336; Eric Foner, The Story of American Freedom (New York: W. W. Norton & Company, 1998), 152.
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were motivated to do so by the faith they shared in their collective ability to
ameliorate social ills that neither their optimism, nor their confidence in the
beneficence of progress could accept. Perhaps more than anything else, what
distinguished their conceptualization of reform from those movements that had
preceded them was the progressive’s reliance upon the efficiency of
organization, the advantages offered by a superior or specialized expertise, and
the power of government to achieve a range of social, economic, and political
“solutions” leading not only to the betterment of society, but its moral
regeneration, an objective requiring, so they understood, the enforcement of
“ever finer distinctions between what is ‘acceptable’ and ‘unacceptable’
behavior.” 4
The years marking the end of the nineteenth century and the beginning of
the twentieth were much like a narrowed portal through which the breadth of
national life, with its perplexing diversity and rising tensions, had suddenly to pass. The political and social restiveness that resulted, while ultimately accelerating the nation’s movement from a “decentralized republic to a mass democracy,”5 did much, in the short term, to energize a reexamination, but not an
abandonment, of the very assumptions that bolstered the more contemporary
notions of a civil society. In the 1890s, the nation’s political institutions, faced
with unprecedented challenges to their organizational abilities and adaptive skills,
proved unable to ameliorate the worst features and the most disruptive
4 William G. Staples, The Culture of Surveillance: Discipline and Social Control In the United States (New York, NY: St. Martin’s Press, 1997), 9-10. 5 Sidney M. Milkis, “Localism, Political Parties, and Civic Virtue,” Edited by Martha Derthick, Dilemmas of Scale in America’s Federal Democracy (Princeton, NJ: Woodrow Wilson Center Press, 1999), 106.
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consequences of a severe economic depression.6 The ineptitude of local and
state governments, their glaring inadequacies, and their inability to cope with a
rising demand for new policy initiatives seriously undermined the public’s
confidence and fed a growing resentment that increasingly found an outlet in
private initiative and in the cause of reform. From a shared sense of moral
indignation and a strong emotional commitment to the principals of “civic virtue,” a new generation of reform-oriented groups began to form alliances with one another to attack a range of objectionable practices and “selfish” interests, which they believed were inherently destructive of the cohesiveness and welfare of their
communities.7 Though deeply disappointed in the weakness of government,
which they despised both for its corruption and for its unyielding partisanship, the
progressives, as these reformers became known, embarked upon a different
course, one committed to “new concepts of social responsibility for the general
welfare and new forms of public regulation and popular control” and the
reordering of society itself.8
The Guiding Light of Reform: Framing the Public Interest
In the years following the end of the Civil War, the United States was
deeply shaken by the economic forces that were reshaping its social order.
Adding to the anxieties these forces had produced was the growing realization
6 Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Chapel Hill: The University of North Carolina, 1995), 7; Otis L. Graham, Jr., The Great Campaigns: Reform and War In America, 1900-1928 (Malabar, FL: Robert E. Kreiger Publishing Co., 1987), 6-12, 14. 7 Thelen, The New Citizenship, 339; Graham, The Great Campaigns, 5. 8 Stephen B. Wood, Constitutional Politics In the Progressive Era: Child labor and the Law (Chicago: University of Chicago Press, 1968), 34; Graham, Great Campaigns, 18-22; and Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence: University Press of Kansas, 1994), 111.
108 that while these changes were resulting in larger scales of production and greater overall wealth, they were also responsible for the appearance of serious social and economic inequities that hinted of class struggle and of the kinds of industrial concentration that masked exploitive and monopolistic practices. Then, in the
1890s, the country suffered a serious economic depression, which exposed the vulnerabilities of its industrial base and the instability of its agricultural economy, contributing to a pervasive sense of social disarray. Three decades of unprecedented economic growth had failed to protect the nation from the financial reverses, business failures, and unemployment that now threatened to unravel the very fabric of American society. Nowhere was this disparity between industrial progress and its social costs more apparent than in the nation's cities. It was in the nation’s urban centers that the development of new construction, power, and transportation technologies, which had radically changed the urban landscape, had been most pronounced. The arrival of thousands of new residents, moreover, had literally transformed the cities, making their populations far more diverse, changing the pace and nature of city life, and rendering it more industrial in appearance and more impersonal and anonymous in feeling.
Central business districts soon emerged as places were all strains and currents of urban life came together, a process made easier by a growing network of streetcars, elevated railways, and telephone lines.9 As social, ethnic, and economic divisions became increasingly apparent, neighborhoods began developing distinctive and sometimes troubling identities.
9 Jon C. Teaford, The Twentieth Century American City (2nd Ed.) (Baltimore, MD: The Johns Hopkins University Press, 1986), 8-17.
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Among Americans of this age, and especially for those of native birth,
changes of this kind and magnitude were not without clearly disturbing characteristics, notably, the impoverishment and the harsh living conditions that were becoming accepted features of life in the nation's metropolitan areas.
Because they felt such apprehension regarding the effects of industrialization and urban growth, which they tended to see as a problem associated with immigration, they regarded "the predicament of particular groups and classes" within their communities as a growing threat to their general welfare.10 The widening gulf between the nation's wealthiest and poorest classes on the one hand and the degree to which "private interests and governmental power" had become practically indistinguishable on the other was especially alarming for a generation for whom the nation's economic order and most fundamental political values were inextricably intertwined.11 The economic upheaval of the 1890s, together with the political and social turbulence that it caused, would, therefore,
become a powerful influence in reducing the political and institutional barriers to
change. Even as the nation began to recover from the disruption of its economic
life, new issues regarding the bonds that traditionally held American society together surfaced, but those for whom they were a growing concern were reluctant to turn to the very governmental institutions whose shortcomings had been so clearly revealed by the economic and social disruptions of the recent depression. It was not so much their disappointment in these institutions,
10 Eric Rauchway, Murdering McKinley: The Making of Theodore Roosevelt's America (New York: Hill and Wang, 2003), 90; Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 157. 11 Thelen, The New Citizenship, 336.
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however, as it was the ambivalence they felt regarding the proper role of the
state that provided the incentive to raise questions concerning governance and
its potential as an instrument of reform.
Traditional Politics at an Impasse
Though confronted with increasingly desperate calls for action, neither the
government, nor the nation’s political parties had been able to meet the
challenges posed by the panic of 1893.12 More customary approaches and
political solutions had been found wanting, unable to find ways to alleviate the
worst aspects of the crisis or to take steps toward the restoration of the nation's
material prosperity. Failure of this kind contributed to the public's growing
uncertainty about its future and further diminished the respect once accorded the
country’s political institutions. In the face of new patterns of development –
industrialization, urbanization, technological innovation, and massive immigration
– the nation’s political system had demonstrated little aptitude toward
accommodating the changes that were transforming the country into something
other than what it had been, into "a new and different order..., a completely
interdependent system with a new power balance and new rules."13 It can be
argued, nevertheless, that the predicament in which the country’s political system
found itself long pre-dated the exposure of its fundamental weaknesses. During
the last decades of the nineteenth century, the nation's political process had very gradually lost its openness and its competitiveness as each of the major parties
12 Ibid., 53. 13 Karl Smith, Urban Disorder and the Shape of Belief: the Great Chicago Fire, the Haymarket Bomb, and the Model Town of Pullman (Chicago, IL: The University of Chicago Press, 1995), 250.
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focused their energies and their resources upon the preservation of their own
power bases, that is, upon those groups or interests whose party loyalty could be
assured through patronage or blatant appeals to their cultural, ethnic, and
religious values.14 In this unfolding political environment where intra-party division was to be avoided at all costs and the insistent demands of new political
groups deflected, the nation's major political parties became poor platforms from
which to address the most pressing public issues of the day.
As the parties’ primary concerns and activities became increasingly
irrelevant to the course and sway of local politics, new organizations and
movements, ostensibly non-partisan in orientation, began to exert their influence
over the public policy-making process on both local and state levels.15 Party distinctions soon became less meaningful as the challenge of addressing specific public needs and resolving common grievances focused the public’s attention and channeled community resources into areas that, for the most part, represented the most pressing and controversial features of communal life.16
The depression of the 1890s had accelerated this trend and given an aura of authority and special urgency to the efforts of reformers who sought to find, through the organizations they founded and by means of the networks they created (and which added immeasurably to their power and influence) a viable substitute for a political process that remained virtually unresponsive to those
14 Nancy Cohen, The Reconstruction of American Liberalism, 1865-1914 (Chapel Hill: The University of North Carolina Press, 2002), 124; Charles Noble, Welfare As We Knew It: A Political History of the American Welfare State (New York: Oxford University Press, 1997), 38. 15 Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999), 167. 16 Paula Baker, The Moral Framework of Public Life: Gender, Politics, and the State In Rural New York, 1870-1930 (New York: Oxford University Press, 1995), 54.
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issues that most deserved venting. Many of these organizations, having been
founded in reaction to issues that defined and bound their constituencies, would
become political forces in their own right. They adopted organizational structures
similar to those of the corporations whose efficiency and administration they greatly admired, employed staff to give coherence and centralized direction to their campaigns, threatened collective action, and openly advocated for change in the political structures that, until then, had dominated the political life of their communities.
Eschewing the moralism that had been so predominant a factor in both the motivation and the efforts of their predecessors, who had deliberately turned away from the corruption and cronyism that so pervaded public life in the Gilded
Age, the progressives had framed their critique of American society on other grounds, appealing, instead, to individual conscience and a personal sense of civic duty and embracing largely political and institutional solutions to the
problems to which they were irresistibly drawn.17 Though similarly repulsed by
the venality and excesses that they, too, witnessed in government, the
progressives were confronted by a more imposing threat to their cultural authority and social standing. The United States was now an industrial state, diverse in population and increasingly vulnerable to the social tensions and labor strife that
had radically altered the political and economic framework within which reform would have to be achieved. The new industrial order had reorganized daily life,
restructured and consolidated the nation's economy, and systematized its
17 Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, Publishers, 1988), 488-99; Andy Logan, Against the Evidence: the Becker-Rosenthal Affair (New York: The McCall Publishing Co., 1970); Thelen, The New Citizenship, 9, 11.
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internal workings, all developments which tended to minimize the influence any
individual or small group could exert as a force for change. This new
environment seriously challenged the organizational abilities and adaptive skills
of the reformers and ultimately forced them to accept a more inclusive and
collaborative approach to effecting change and further encouraged them to shift their attention to politics and legislation as a more promising forum within which to realize what would have to become a broader-based reform agenda.18
The progressive “movement” defies easy description, and it would be misleading to ascribe its success in combining "the many hues of reform” in terms that might suggest that it constituted a “single national organization."19 It
would be more accurate to depict the progressives as a loose confederation of
organizations with overlapping, if not occasionally dissimilar, interests. What
gave unity to this "movement" was the antipathy its constituent groups felt toward
the imbalances and injustices of the new industrial order by which they all felt
challenged and the conviction they carried that the process of governance,
having become increasingly non-responsive, unmanageable, and tainted by
corruption, was in some way responsible for this state of affairs.20 This is not to
say that the powerful impulses upon which the progressives acted were without
contradictions. There were, in fact, several that would temporarily be obscured
by their enthusiasm and momentum. On one hand, the progressives believed
very strongly in the importance of private association and collective action as a
18 Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (Chapel Hill: The University of North Carolina Press, 2002), 80-82. 19 Michael Kazin, The Populist Persuasion: An American History (New York: Basic Books, 1995), 46. 20 Sanders, Roots of Reform, 166.
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harbinger of change, but they eagerly embraced government – their notion of efficient government practices - as a vital instrument of reform; they possessed a resilient faith in the nation's democratic principles, among them individual autonomy and economic initiative, but believed deeply in the possibilities that
their industrial, corporate economy, with its emphasis upon the strengths of consolidation and mass production, offered as a source of social progress.
Few doubted that the appearance of larger business combinations, higher
productivity and industrial capacity, and expanding mass markets would combine
to transform society in ways which, while promising significant benefits, would
also make inevitable, unless checked, the continuing privations of social harmony
and economic security. There was, therefore, a restorative aspect to progressive
thought that was revealed both in its rhetoric and in its devotion to the idea of a
collective interest, the power of consensus, and the license it impliedly gave to
those who could act on the public’s behalf, for the greater public good.21 It was thus relatively easier for the progressives to consider the function and responsibilities of government in a very different light,22 where the strength of
individual liberties no longer stood in inverse proportion to the power of government, where the power of one could only diminish in response to the growth of the other. In a world dominated by enormous and powerful economic interests that seemed impervious to the influence of traditional political and economic structures and so completely insensitive to the ethical implications of
21 James J. Connolly, The Triumph of Ethnic Progressivism: Urban Political Culture In Boston, 1900-1925 (Cambridge, Massachusetts: Harvard University Press, 1998), 8-9; Samuel P. Hays "The Social Analysis of American Political History, 1880-1920," Political Science Quarterly 80, no. 3 (September 1965), 92; Foner, The Story of American Freedom, 160. 22 Foner, The Story of American Freedom, 152, 153.
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their behavior, liberty itself would not long survive unless the power of the
community as a whole could be used responsibly and consistently to insure its
preservation, where government could act for the betterment of all the people
and without favor to any. "To traditional notions of individualism and autonomy,
the progressives welded the idea that such freedom required the conscious
creation of the social conditions for human development."23 Those conditions were a prerequisite, not merely for the realization of social justice, but more importantly, for the preservation of democracy itself.24 Under these
circumstances, the power of government represented something far more
positive and fulfilling, virtually a “guarantor of social and economic welfare.”25
Wherever, then, it could be reorganized and empowered to more efficiently perform this duty, the state would clearly and legitimately be acting on behalf of the people, accountable, if not directly to their will, then to its “equivalent,” their best interest.
Throughout the latter part of the nineteenth century and well into the next,
Americans were treated to a growing list of exposes involving political corruption, influence peddling, vice, the distribution of impure and harmful food and drugs, and other outrages that fed their sense of indignation and created an environment particularly favorable for reform. It is unlikely that the progressives could ever have acquired the influence they had if these revelations hadn’t made
23 Ibid., 153. 24 Eisenach, The Lost Promise of Progressivism, 67; Foner, Story of American Freedom, 153- 160. 25 Milkis, “Localism, Political Parties, and Civic Virtue,” 117; Foner, The Story of American Freedom, 153.
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the need for reform so immediate and personal to so many.26 But indignation
and disaffection could not together have sustained the progressives’ assault
upon either the inadequacies of government or the evils of concentrated private
wealth. What lay at the heart of the progressives’ appeal, along with their
emotional commitment to civic virtue, was their adroit pairing of the nation's
reverence for the principles of liberty with the benefits that could be derived from a more balanced and disciplined social order. In pursuit of their objectives, the progressives promoted a relatively new set of social and political understandings that more readily accommodated the realities thrust upon the nation by the technological and economic changes it was experiencing. This was not an easy
task for them because it was complicated by the "inherent tension" that existed between their strong attachment to the ideals of American individualism - the concept of the individual as a "decisive agent of history" – and a society the
progressives viewed as increasingly, perhaps inevitably, "dominated by [the] vast
anonymous forces" that effectively reduced the public's control over its
direction.27 The progressives, therefore, sought not so much to restore what they believed had once been a moral consensus,28 thought this remained their hope,
as to redefine the meaning of collective responsibility through a re-definition of
what constituted appropriate governmental action.
26 Richard L. McCormick, “The Discovery That Business Corrupts Politics: A Reappraisal of the Origins of Progressivism,” American Historical Review 86, no. 2, (April 1981), 247, 249; Daniel T. Rodgers, Atlantic Crossings: Social Politics In A Progressive Age (Cambridge, MA: Harvard University Press, 1998) 154-155. “Corruption," Rogers wrote, "added to a burden so large as to tip the balance. The looting of city treasuries, the appetites of greedy councilman, the systematic corruption of political machines - all these formed the background chorus to the debate over reform." 27 Ernst A. Breisach, American Progressive History: An Experiment in Modernization (Chicago: University of Chicago Press, 1993), 45. 28 Graham, The Great Campaigns, 164.
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In aggressively pursuing a strategy that warned of the social implications
of unchecked greed and open corruption, the progressives intended not merely
to regenerate a sense of endangered community, but to harness its power in
creating those social conditions within which the development of citizenship and
a democratic community could take place, even flourish.29 Where evidence both
of the collusion between government and business and of the greed of political
machines served to mobilize public opinion, the notion that "significant public values could be realized through governmental institutions" could be employed to gain wider recognition of government as a ready-made instrument for change.30
Liberty, and even justice, the progressives argued, could survive only where the power of the community or the nation could be used responsibly and for its benefit, unaffected by the selfish interests of a few and operating beyond the reach or influence of partisan or factional strife. In short, Progressivism, having formulated an encompassing vision of the “harmonious” state, wherein a fundamental compatibility existed between the nation’s social and economic interests, was now demanding, in the name of the public good, nothing less than a "reconceptualization" of the role of government in the management of society’s
“social and economic relations.”31
Championing Bureaucracy
Having reintroduced the concept of a transcendent public interest, the
progressives vigorously pursued their assault upon the inefficiencies of the
29 Eisenach, Lost Promise of Progressivism, 67; Foner, The Story of American Freedom, 153- 160. 30 Hays, "The Social Analysis of American Political History, 1880-1920," 383. 31 Gillman, The Constitution Besieged, 149-150.
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political process itself. "An activist government," they argued, "and a properly
organized society could empower individuals, invigorate American democracy,
and allow Americans once again to shape their destiny."32 The progressives’
insistence upon a more "efficient politics" - whether rooted in the "deepest
currents" of American political culture or reflecting the their determination to achieve victory at almost any cost33 - was intended to awaken the public to the
possibilities this new approach to the organization and management of
government services would afford them, one that would allow for a broadening of
the functions and responsibilities of government. In effect, the "central issue of
politics" had changed: it was no longer a question of whether government could
legitimately act "to restore individual autonomy and preserve democracy in an
age of industrial concentration, but how."34 The answer, for the most part, would
be found, the progressives were convinced, in the growing influence of those
organizations that were driving municipal reform and were offering new and
innovative approaches to the field of public administration. Without direct access
to the power of government, the progressives well knew, many of the reforms
they were championing would have no hope of ever being realized. For though
the progressives had objected strenuously to a political system that had become
corrupt and subservient to selfish interests35 and preoccupied with patronage and
favor, they were neither prepared to accept politics as usual, nor to challenge the
political process head-on. They instead directed their sharpest criticism toward
32 Steven J. Diner, A Very Different Age: Americans of the Progressive Era (New York: Hill and Wang, 1998), 210. 33 Hays, "The Social Analysis of American Political History," 104, 106. 34 Diner, A Very Different Age, 200-201. 35 Hays, "The Social Analysis of American Political History," 95.
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the functional deficiencies and unpredictability of local government, making the
process of governance rather than the structure within which politics was
conducted the central concern.36
Local politics, especially that in the nation’s cities, often involved issues
that reflected little regard for the kind of partisanship that characterized the
competition between the nation's major parties on state and national levels.
Urban politics was dominated by local organizations whose constituencies were
divided not so much by considerations of party affiliation or strictly partisan
politics, but by issues of local significance: economic development, taxation,
public improvements and utilities, the use of public funds, and the exercise of the
municipality’s administrative authority. Issues concerning the quality of urban life
were especially controversial, because they involved a decision-making process
that resisted modern managerial and administrative methods at a growing cost to
the public. The regulation of public transportation and utilities, the supervision of
public welfare services, and the collection of taxes were as likely to be overseen
by administrations chiefly concerned with patronage and the undisclosed
arrangements through which the operation of public resources and services
could be made especially lucrative to the private parties and public officials
involved. Many administrations, handicapped by the cities’ political structures,
were unable to cope with the complexity and growing scale of the functional responsibilities of government and suffered from a lack of technical proficiency,
operational inflexibility, and organizational rigidity. Even the political process
seemed incapable of infusing government policy-making and management with a
36 Eisenach, Lost Promise of Progressivism, 115.
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degree of continuity and coherence. Changes in administration often resulted in the replacement of large numbers of appointed officials, rendering long-term
planning or interagency coordination a near impossible task. As a result, the
overall effectiveness of local and municipal governments was left much
weakened with unfortunate consequences for a widening array of services for
which these governments were responsible. Municipal services remained
uncoordinated, wasteful, and even sporadic, a record that stood in stark contrast
to that of the modern corporation which, with its flexible organization, centralized
direction, and clearly defined and unobstructed goals, served as a model of
efficiency.37 It came as no surprise, then, that the necessity for developing similar attributes in the “business” of government would emerge as a major theme in progressive politics, the standard against which the functioning of government was to be compared and, more often than not, found wanting.
The progressives thus were inclined to believe that if they were ever to find pathways to meaningful reform, they would first have to bypass the traditional channels of government policymaking and established forms and practices of administration.38 Their preference for circumvention reflected not
only the degree to which they had become energized by the "declining influence
of party control over politics and government", but also the extent to which they
had been influenced by the lessons they had drawn from those past political and
third-party movements which had once so dominated the political scene.39 From
37 Russell L. Hanson, The Democratic Imagination In America: Conversations With Our Past (Princeton, NJ: Princeton University Press, 1985), 242-243. 38 Rodgers, Atlantic Crossings: Social Politics In A Progressive Age, 154-155. 39 Milkis, “Localism, Political Parties and Civic Virtue,” 107, 120.
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the criticisms of the latter they had become more keenly aware of the obvious
failings of government and more easily moved to question the purpose and role
of government in the nation's economic and social life. Those movements, in
rejecting partisan politics as an appropriate context within which to seek redress
of their grievances, had embraced and popularized an entirely different
understanding of what should and could be expected from government.
Capitalizing on new and powerful trends - the rising importance of
government to people's expectations, a resurgent interest within state
legislatures following the depression of the 1890s in policy innovation, and the
inroads made in public administration as a result of advances in civil-service
reform – the progressives helped to introduce an entirely new climate of opinion that not only began to accept the necessity of government intervention, but also new ideas regarding the responsibilities of government. This would become their hallmark.40 It could well have been that the attraction the progressives felt
toward systematization and bureaucratic administration, and that were so visible
in the private sector, had presupposed an interventionist state and the bureaucratic structures that would be necessary to manage it. But in the end, for most of the urban progressives, bureaucracy represented the form of organization that seemed best suited for the perpetuation of those ideals to which they were dedicated: local autonomy, civic virtue, and a well ordered society.
40 Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore, MD: the Johns Hopkins University Press, 2002), 6.
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Maintaining Order in the Industrial Age
Many of the calls for government intervention had been prompted by the
tensions and that had largely characterized urban life and by the social and cultural consequences of industrialization and immigration. Having witnessed the violence of labor conflict, bombings and political agitation, the squalor and
overcrowding forced upon a growing immigrant population, and corruption that
threatened the integrity of the nation's public institutions, the progressives had
reason to be concerned regarding the direction in which the nation appeared to
be moving.41 For them, the link between freedom and order was indispensable.
The former combined all the assumptions they held regarding the unique and
powerful promise of democracy. But order represented a condition that was especially critical for the nation’s survival as a civilized society, in effect, the
"social trust and community solidarity" that served both as its foundation and as an affirmation of those enduring values, including self-government, so closely associated with the nation’s history and fundamental to its identity.42 The progressives’ involvement with institutional reform, therefore, allowed them to speak more authentically and emphatically to all segments of American society regarding the necessity and importance of pursuing not just the improvement of government, but, more importantly, the betterment of society as a whole.
Americans in the progressive era came to perceive disorder, and particularly crime, in a new and, for them, a more threatening context. Notions of
41 Smith, Urban Disorder and the Shape of Belief, 247-249. 42 Malcolm M. Feeley and Austin D. Sarat, The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration (Minneapolis: University of Minnesota Press, 1980), 3.
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criminality were no longer confined to their more familiar definitions such as
threats to property and life, but now included conditions that reflected a sense of
social danger: a threat not only to society, but to the process of administering to
society's needs as well.43 From the progressives’ perspective, if the harsh
realities of industrial concentration and urbanization demanded an
unprecedented level of intervention in the economy and increased regulation of a
growing number of matters such as housing and public health, then the threat
presented by an emerging culture that was far more unstable and heterogeneous
than anything they had previously experienced clearly justified a more forceful
intervention in the lives of ordinary citizens.44 Just as the government's
obligations had grown in accordance with its new regulatory responsibilities, so, too, it was widely believed, had its responsibility for the maintenance of higher standards of public order.45
The power of the state to police the conduct of individual members of
society became increasingly justified as society’s “interest" in regulation extended
outward in an ever widening circle of public and private activity.46
Industrialization and urbanization, aside from the awareness they instilled regarding the economic and social costs of disorder, also forced the progressives to acknowledge the necessity of enforcing more demanding standards of social
43 Keller, Regulating a New Society, 155. 44 Richard Hofstadter and Michael Wallace, Eds. American Violence: A Documentary History (New York: Alfred A. Knopf, Inc., 1970), 477. 45 Samuel Walker, A Critical History of Police Reform: the Emergence of Professionalism (Lexington, Mass.: Lexington Books, 1977), 23-24 46 Michael Willrich, “The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930.” Law and History Review 16, No. 1 (Spring 1998), 66: 76; Morton Keller, Affairs of State: Public Life In Late Nineteenth Century America (Cambridge, Massachusetts: Harvard University Press, 1977), 494-495.
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discipline if they were ever to achieve the kind of society they had envisioned.47
Progressives who had been in the forefront of a broad movement to transform the most troubling concerns of the day into issues of social control increasingly turned to regulation and the criminal law to restore a more desirable quality of life. In such an environment, issues concerning the law and its proper application, specifically the use of police power, were destined to become an important aspect of both local and national politics.48 That they were motivated to raise such issues because they possessed a clearly moral dimension is undeniable, but questions concerning private and public morality had long been considered fit
subjects for public debate and action, primarily because of the implications they
held for the life of the community and for public order.49 Prostitution, for example,
presented several different concerns ranging from the risk of increased criminal
activity, generally, through matters involving disease and public health. Alcohol
as a public issue was not merely a matter concerning drunken or disorderly
behavior, but a subject of interest to those involved with the families of the
unemployed or destitute and to those for whom the saloon had come to
represent much that was reprehensible about the political and social life of the
nation’s cities. Among the progressives, there were many, certainly, who found
in such conditions the kinds of “moral” deficiencies reason enough for strong
47 Carl Smith, Urban Disorder and the Shape of Belief, 271; Ted Robert Gurr, "On the History of Violent Crime in Europe and America," Edited by Hugh Davis Graham and Ted Robert Gurr, Violence in America: Historical and Comparative Perspectives (Beverly Hills: Sage Productions, 1979) 359-361; Walker, A Critical History of Police Reform, 23-24, citing Roger Lane, "Crime and the Industrial Revolution: British and American Views," Journal of Social History 7 (Spring 1974): 287-303. 48 Feeley and Sarat, The Policy Dilemma, 5. 49 Paul Boyer, Urban Masses and Moral Order In America, 1820 – 1920 (Cambridge, MA: Harvard University Press, 1978), 196.
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action. For them, such intervention was fully warranted not only because they believed their values “worthy” of the protection that the criminal law and its
enforcement could provide, but also because they believed that the government
had a duty to ensure that the populace received clear direction in conforming its
conduct to acceptable, even praiseworthy social norms.50 To the extent that
these moral concerns reinforced notions regarding social responsible behavior,
they provided a strong incentive for intervention and facilitated the criminalization
of activity that, irrespective of any moral implications, violated social interests that
were increasingly the subject of public policy.51 But it was more the public’s
rising expectations regarding the responsibility of government for the
maintenance of order that allowed the reformers the latitude they desired to
make more efficient use of its power and resources. As a consequence, the
progressives were able to act with little restraint in the structuring of their reforms,
confined neither to one particular approach, nor, significantly, to any one level of
government in the pursuit of their goals.
For both the progressives and their supporters, the regulatory state
represented but one system of control among several available to the forces of
reform, and even then, depending on the goal in mind, it was not always
regarded as the most appropriate choice.52 Many pieces of legislation were, in
fact, enacted during the progressive era at the insistence of essentially private
organizations, who, when faced with an indifferent or resistant state legislature or
50 Jay Stuart Berman, Police Administration and Progressive Reform: Theodore Roosevelt As Police Commissioner of New York (Westport, CT: Greenwood Press, 1987), 12. 51 Breisach, American Progressive History, 60-65. 52 Hanson, The Democratic Imagination In America, 237.
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city administrations, were left with no other choice but to assume the responsibility of enforcement themselves. For the progressives, this was not an
uncommon occurrence, but it also reflected a deeper ambivalence on their part
toward the concentration of government power and their preference for
grassroots action and private initiative as the engines of reform. Even as they
embraced organizational structures and procedures that gave greater
responsibility to the agencies of government, the progressives were careful to
ensure that these powers were shared with or remained accessible to private
individuals or other public interest organizations. Toward that end, the
progressives were frequently willing to blur the distinctions between “criminal and
non-criminal jurisdiction” in assigning “expanded enforcement powers . . . to
private charities regarding neglected children, abandoned wives, anti-vice
organizations and medical societies, the latter involved in combating quacks and
abortionists.”53
The Progressives and the Police
This kind of an approach to the enforcement of public standards reveals a
great deal about the progressives’ attitude toward the criminal justice system.
Like many of their contemporaries, tended to view the police as an extension of a
political system that traditionally allocated and delivered government services on a purely partisan basis. Organizationally decentralized and responsible for an
array of public services, the police, given that their authority was so widely
recognized, were invariably assigned responsibilities that involved functions other
53 Morton Keller, Regulating a New Society: Public Policy and Social Change In America, 1900- 1933 (Cambridge, Massachusetts: Harvard University Press, 1994), 162.
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than the maintenance of order. The way in which the police operated was influenced by the “class and ethnic makeup of a particular locality” and by such partisan concerns as might typically preoccupy the elected officials responsible for overseeing the work of the police.54 As a result, the police were often
regarded organizationally as little more than an extension of municipal
government rather than as a legal institution whose principal functions were
defined by law. The progressives, as did most people in their day, believed that
wherever one found police mismanagement and abusive enforcement tactics,
one would just as assuredly find a local government that was ineffectual or
corrupt.
For over thirty years, urban reformers and their business and political
allies had taken every opportunity presented to them by the occasional police
scandal that surfaced periodically to attack the “prevailing patterns” of partisan
politics and the influence of the political machines they so detested, but could not
otherwise overcome.55 On such occasions, questions concerning the integrity of
the police, who were held in such low esteem anyway, were little more than
incidental to the real issues that were raised regarding control over the powers
and services of local government. In the eyes of the progressives, the police had
come to symbolize “the worst features of corrupt government,”56 but as such,
54 James F. Richardson, “Police In America: Functions and Control,” Edited by James A. Inciardi and Charles E. Faupel, History and Crime: Implications for Criminal Justice Policy (Beverly Hills: Sage Publications, 1980), 211-213. 55 Ibid., 215; David R. Johnson, Policing the Urban Underworld: the Impact of Crime On the Development of the American Police, 1800 – 1887 (Philadelphia: Temple University Press, 1979), 6-7. 56 Nathan Douthit, “August Vollmer, Berkeley’s First Chief of Police and the Emergence of Police Professionalism,” Edited by Kermit Hall, Police, Prison, and Punishment: Major Historical Interpretations (New York: Garland Publishing, Inc., 1987), 102.
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they were regarded as a symptom, not the source of the malfeasance, waste,
and maladministration of which city government stood accused. What
distinguished the progressives from these other critics of the cities’ administrative
apparatus was that they did not merely intend to remove the administration of
justice from the political framework in which it was so tightly imbedded, but to
utilize all facets of the criminal justice system as an instrument of reform and as a
means of improving the quality of civic life. Crime was, of course, a major
concern, but its prevalence, to the progressive’s way of thinking, was more a
measure of the degrading and depraved social conditions afflicting the urban
environment than a mere statement of the incidence of crime.57 Much like a
disease, crime and vice needed to be “treated,” and treatment would require a
remedial response sufficiently varied to apply to all symptoms of the disease.
The object of progressive reform, at least as it related to the police, was,
therefore, wholly consistent with the broader aims of their reform program and
was, in the end, less an effort to address the organizational and operational
weaknesses of the police than it was part of a larger effort to redirect the thrust of
urban policing.58
For the progressives, the task of reorganizing and depoliticizing the police was not so much to be “the purpose, but the product of reform."59 The police, after all, alone possessed the authority and the means necessary to suppress the vice and the other forms of criminality that stood in the way of efforts to improve
57 Walker, A Critical History of Police Reform, 24. 58 Sheldon Glueck, Ed. Probation and Criminal Justice (New York: The Macmillan Company, 1933), 10-11. 59 Walker, A Critical History of Police Reform, 83-84.
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the moral climate of their communities. But the Progressives had no police
"model" to guide them in achieving their goal. As a member of New York City's
police commission, Theodore Roosevelt had personified the progressives’ approach to police reform: he came to office with no plan and virtually no idea
where he might begin in implementing reform. Like his fellow progressives,
however, he believed very strongly that the “lawlessness” gripping his city was the result of ineffectual policing and the non-enforcement of the city’s anti-vice laws. The institutional reforms to which the progressives subjected the police reflected, not surprisingly, the most fundamental notions of progressive reform: uniformity in enforcement, centralization of authority, and higher standards of competence. The progressives were dedicated to the idea that the law should be uniformly and impartially enforced and understood almost instinctively that such
“efficiency” in the enforcement of the law was critical to the success of the new regulatory environment for which they were largely responsible. They were also aware that a more uniform application of the law would serve as an effective countermeasure to the use of selective enforcement as a political tool.60
Efficiency also meant strong leadership and through it the benefits that could be derived from more effective supervision and centralized direction. The progressives believed that closer control over the police would not only make them more accountable for their activities, but also facilitate the reformer’s efforts to consolidate their ranks and operations. For the reformers, centralized direction was vital, not merely because it conformed to the highly esteemed and
60 Mark H. Haller, "Urban Crime and Criminal Justice: the Chicago Case," Journal of American History 57, No. 3 (1970), 626-627.
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proven corporate managerial style of the day, but because it encouraged
stronger lines of command and made control over the individual policeman – as
well as his ability to resist corrupt or political influences – that much stronger.61
Morton Keller once observed that despite the progressives’ innovations and solid commitment to bureaucratic efficiency, their efforts to supplant the
“immensely local, political character of America’s police” ultimately failed.62 To be sure, the progressives encountered a level of resistance, some of it very subtle in its effects, that was formidable by any measure. Their failure to transform the police was the result, however, of many factors, not the least of which was their inability to understand the complex environment in which the police operated or to see that politics was such an integral part of it.63 From the
beginning, the advocates of police reform were inclined to downplay the
significance of the economic, cultural, and political issues that divided urban
populations64 and that made agreement regarding law enforcement priorities or
concerns virtually impossible. There was, for example, a great deal of
ambivalence about such matters as alcohol and gambling that made support for
their criminalization and elimination elusive or half-hearted, at best. Made a
symbol of the urban disorder against which they struggled, the saloon was much
maligned by the progressives as a haven for petty crime and prostitution, but for
its patrons, mostly the urban working class, the saloon represented something
61 Haller, "Urban Crime and Criminal Justice,” 303-304; Logan, Against the Evidence, 89-91. 62 Keller, Regulating a New Society, 165. 63 Thomas R. Pegram, Partisans and Progressives: Private Interest and Public Policy In Illinois, 1870-1922 (Chicago: University of Illinois Press, 1992), 185; Michael Schudson, The Good Citizen: A History of American Civic Life (Cambridge: Harvard University press, 1999), 243. 64 Pegram, Partisans and Progressives, 185.
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quite different and even positive, a place of comfort, fellowship, and mutual
support, “an institution of everyday survival.”65 The tolerance with which the
police had customarily treated gambling, drinking, and even prostitution hadn’t
been motivated by the promise of graft alone, but by the feeling, as well, that
such activities were a matter of human nature - something well beyond their
control - and so deeply imbedded in the life of the city as to defy any attempt at
its removal. The relationships among the cities’ politicians, its courts and
prosecutors, and those, criminal and entrepreneur alike, who controlled these
activities were themselves so entrenched as to have virtually “institutionalized” the police’s policy of tolerance.66
Perhaps most disappointing of all was the progressives’ failure to accomplish a wholesale restructuring of the police in the face of rapidly evolving changes in the nature and scope of urban crime. The progressives’ emphasis upon the concentration of police power at the uppermost echelons of command and a more centralized police structure, both measures intended to insulate the police from political influence and corruption, contributed almost nothing to the development of a professionally-minded and efficient force, though it did, somewhat ironically, enhance the political bargaining power and influence of the chief of police and his commanders, a factor that would ensure the continuing involvement of the police in local politics. None of the measures the progressives had championed in their attempt to reform the police had proven
65 Perry R. Duis, The Saloon: Public Drinking In Chicago and Boston, 1880-1920 (Urbana: University of Illinois Press, 1983), 230. 66 Peter K. Manning, “The Police: Mandate, Strategies and Appearances,” Edited by Jack D. Douglas, Crime and Justice in American Society (Indianapolis, IN; New York: The Bobbs Merrill Company, Inc., 1971), 167; Haller, “Historical Roots of Police Behavior,” 315-317.
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sufficient to transform all of the cities’ neighborhoods into secure and orderly settings for the betterment of communal life. Faced with a growing resistance to their agenda, the very character of progressive reform began to change, its focus increasingly narrowed to matters of more immediate concern, to the control of the immigrant populations with whom they had been unable to connect and to the adoption of more repressive measures against what they perceived as the frightening social and national implications of prostitution and the sale and consumption of alcohol. In time, the progressive’s approach to combating crime, vice, and juvenile delinquency, became more aggressively interventionist, downplaying those factors to which the social disorganization responsible for much of the crime, disease, and other characteristics of slum life had once been attributed and placing greater stock in the prevention or deterrence of criminal behavior.
Reform and Cooperative Federalism
Such ambitions, however, could not be fulfilled on a local level alone. The resources of the states and their more expansive jurisdiction soon captured the interest of the progressives and became important venues for the fulfillment of the progressive agenda. The states, however, found themselves increasingly stymied by a national market that had become so thoroughly integrated as to defy traditional precepts of state power in a federalist system. The doctrine of dual sovereignty had become an impenetrable barrier to state regulation of the transportation networks and commerce that flowed across their boundaries, limiting the reach and effect of the police powers they wielded on behalf of their
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citizens and for the purpose of maintaining public order. The progressives’
response to this problem tended to be more pragmatic than theoretical, and, for
that reason, did nothing to resolve the tensions inherent in the nation’s federal structure. But then this had not been their purpose. Preoccupied with the most
disruptive aspects of this new industrial order, the progressives pursued not so
much a national solution as a loosely fitting, multilayered network of social and
economic controls within which there reforms could be most effectively applied.
Like their contemporaries, the progressives shared a strong preference for the decentralization of political power and greatly respected the wisdom that had moved the framers of the Constitution to divide the responsibilities and powers of government between the states and the central government. In view of their experiences with political machines and party-dominated legislatures, the progressives believed they had good reason to be cautious in giving government too much power lest it be co-opted by forces over which they had no control.67
Progressivism, at its deepest level, was not entirely comfortable with heavy concentrations of governmental power, no more so than it had been with the corporate consolidations that had threatened to destroy the nation’s entrepreneurial traditions. Even as they had stood upon a political and social terrain that had been substantially altered by a growing industrial economy, the progressives remained deeply committed to realizing their most important
67John Whiteclay Chambers, The Tyranny of Change: America In the Progressive Era, 1890-1920 (New Brunswick, NJ: Rutgers University Press, [1992] 2000), 150-151.
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reforms through the "local political frameworks" within which their goals had been
formulated and their accomplishments had taken on their greatest significance.68
Given great encouragement, however, by a public that applauded their
activism, especially on those occasions when it reflected widespread
disenchantment with the worst economic and social features of the nation’s
industrial and urban trends, the progressives found ways and the bureaucratic means to rationalize widening the scope of their reforms - particularly as they applied to issues concerning social control. If this tendency on the part of the progressives suggests that they had little regard for the jurisdictional boundaries that provided the framework within which American government ordinarily functioned, nothing could be farther from the truth. In their enthusiasm for reform, the progressives certainly found no advantage in dwelling on questions of sovereignty, on the distinctions to be made between national and state power. In a society where the major institutions of government, the federal judiciary in particular, had been so active in delineating between the responsibilities of the states and those of the federal government, the challenge lay instead in the
alignment of institutional – local, state, and federal – strengths so as to be able to
more effectively address social and economic issues that could not, either
practically or safely, be consigned to any one level of government. Perhaps
because they remained so committed to preserving the states’ special status as
those centers of self-government that were so vital to American democracy, the
progressives proved to be more accepting of limited federal intervention where
68 William Graebner, "Federalism In the Progressive Era: a Structural Interpretation of Reform." The Journal of American History 64, no. 2 (September 1977): 332.
135 such intervention could more adequately serve the interests of the public at large without sacrificing the structural benefits and guarantees of a federalist system.
Among progressives who were concerned with the moral temper of their communities, federal support was regarded as essential in reinforcing their condemnation of morally objectionable or criminal activity and in legitimizing the steps taken to preserve values that were so clearly threatened by such conduct.
For them, the federal government possessed a capacity to enforce the law in ways that were distinct from and beyond the jurisdictional reach of the states.
The real advantage to federal intervention lay in the government’s power to remove the obstacles that discouraged the implementation of local enforcement policies or limited their effectiveness. The progressives’ growing reliance on national legislation was, therefore, entirely consistent with their view of the federalist framework as a cooperative endeavor, seamless in its jurisdictional reach, wherein each of the participants employed the powers and resources allocated to it in service to important local interests that had potentially significant national implications. In matters concerning social control, the role of the federal government had changed only to the extent to which it was now expected to serve in this supplementary capacity. Few legislative enactments better illustrate progressive thinking along these lines than the passage of a federal law regulating the labeling and distribution of processed food and drugs. As with so many other progressive inspired pieces of legislation, food and drug regulation was the “product of outraged public opinion; primarily moral in its premises and prohibitions; administrative and prohibitory more than it was interventionist or
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socially reconstructivist.”69 Concern regarding the distribution of misbranded or
adulterated foods and drugs, especially patent medicines whose contents were
often undisclosed, had been growing since the early 1890s. It was not, however,
until the early years of the new century that questions regarding the quality of
these products were brought to the attention of the federal government. What
precipitated this demand for federal intervention was the realization that the level
of regulation imposed upon the manufacture of these items varied significantly
from state to state. In the absence of any effective industry-wide standards,
there were few assurances that could be offered in response to the health
concerns raised by the consumer in regard to the consumption or use of these
products. Passage of the Pure Food and Drug Act, in a sense, compromised the
power of the states to act unilaterally in regulating this trade, but only to the
extent to which federal authority had proven necessary to ensure a uniform
response to a matter of compelling local and state interest. Deliberately drafted
in such a manner as to permit state food inspectors or drug regulators to act
under federal authority, the Act was intended to acknowledge the state’s
advantages in enforcement, its resources and community support, while affirming
the jurisdictional responsibilities of the federal government in the regulation of
interstate commerce.70
The progressives who promoted this vision of cooperative federalism
failed, however, to understand the unsettling implications that it had for the future
of federalism, which were significant. As issues of local concern were recast in
69 Robert M. Crunden, Ministers of Reform: The Progressives’ Achievement in American Civilization, 1889-1920 (Urbana: University of Illinois Press, 1984 [1982]), 196-197. 70 Ibid., 174.
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more compelling and national terms – as questions concerning the nature of the
American character, the maintenance of national unity, the preservation of basic societal values – the attention given them not only intensified, but resurrected concerns regarding the dangers of centralized power. The progressives’ legacy was, therefore, a conflicted one. The political decentralization they had sought had strengthened their influence over local and state governments and had expedited the bureaucratic reorganization of government, but their reliance upon an administrative solution, a solution of political expediency, to what was essentially a structural problem would only invite further uncertainty in a federalist scheme that was central to the functioning of government in America. As federal and state interests became more indistinguishable, the task of defining the boundaries between them, in the absence of a more permanent solution, became increasingly the responsibility of the very agencies of government to which the progressives had once turned for support and with whose growing power they were increasingly uncomfortable.
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PART II
EXTENDING A HAND: THE FORMATIVE YEARS
OF FEDERAL LAW ENFORCEMENT
Chapter 4
A POLICY WITHOUT TEETH IS NO POLICY
Institutions are in politics what fortifications are in war; each, if well planned, may aid good and brave men to do their duty; neither can take the place of such men; . . . and in government, no less than warfare, it is, after all, the human element that counts. Charles J. Bonaparte, President, National Municipal League, 1910
The history of federal crime policy during the first decade of the 20th century can best be understood as part of a process of accommodation between the relatively modest resources of the national government and the increasingly greater demands that were made upon its growing regulatory, as opposed to criminal enforcement, responsibilities. Though frequently portrayed, sometimes dramatically, as a watershed in the evolutionary development of the federal government’s law enforcement capabilities, the rising importance of the
Department of Justice - and its establishment of a small investigative force to service its special needs - did not, contrary to some opinion,1 signal the onset of a new age in federal crime fighting. While crime and disorder remained subjects of concern, particularly on a local level, the most perplexing issues of the day arose instead from the political controversies generated by the growing economic dominance and concentrated wealth of large business combinations and the
1 See Max Lowenthal, The Federal Bureau of Investigation (Westport, CT: Greenwood Press Publications, 1950), Chapter 1; Curt Gentry, J. Edgar Hoover: The Man and the Secrets (New York, NY: W. W. Norton & Company, 1991), 111-114.
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industries they controlled. In a society where the ease with which corporations
and interlocking trusts manipulated the market was seen as evidence of a
dangerously weakened Democracy and largely ineffectual political institutions,
issues other than crime were far more likely to command the public’s attention and to provide the incentive for federal intervention. Given the continuing
perception that criminal matters fell exclusively within the domain of the states – even where, as in the case of interstate transportation of alcohol or prize fight films, concerted efforts on the part of the states and the federal government had been called for – crime and public disorder were not yet considered issues sufficiently critical as to invite federal involvement. The public’s primary concerns
involved questions of governance. For not only was the nation’s changing
socioeconomy proving to be a challenge for its longstanding social and cultural
patterns, but it was widely perceived as having compromised the governing
capacities of the nation’s system of party dominated government as well.
Concerns such as these would eventually transform the management and
operation of governmental services and expedite, in the name of administrative efficiency, the transfer of considerable discretionary authority from the legislative to the executive branch of the national government. This, then, became the political environment within which the primary instrument of federal law enforcement, the Department of Justice, emerged as an institution in its own right, and its role in the implementation of national policy began to evolve into an organized, bureaucratic, and permanent activity.
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The growing and increasingly concentrated power of the executive branch
is often portrayed as having originated with the presidency of Theodore
Roosevelt. As a transformative event, however, Roosevelt’s term in office could
more accurately be regarded more as a milestone - the product of historical
circumstances whose origins predate his administration - along an evolutionary
path of institutional development that would largely remain beyond the influence
of any one man. The idea that a president would take an active and vigorous
role in the administration of government was a relatively novel one in the latter
part of the nineteenth century. Until that time, the chief executive had been
expected to play a fairly passive role in directing his administration, conceding to
Congress the primary responsibility for the development and, to a great extent,
the implementation of national policy.2 Even in those instances where the
president did exercise what little discretionary authority he possessed, he was
constrained in the decisions he could make both by the budgetary restrictions imposed upon the individual departments and bureaus comprising the executive
branch and by the operational limitations under which these agencies labored.
These restrictions made the executive’s coordination of the various departments
extremely difficult and made any effort to instill a real sense of a "government-
wide operation" practically impossible.3 By virtue of Congress’ control over the
appropriations process, the intra-departmental transfer of appropriated funds,
and the enactment of deficiency legislation, it was able to influence, to an
2 Arthur M. Johnson, "Antitrust Policy In Transition, 1908: Ideal and Reality," The Mississippi Valley Historical Review 48, no. 3 (December 1961), 420, 433; Leonard D. White, The Republican Era, 1869-1901: A Study In Administrative History (New York: The Macmillan Co., 1958), 28, 40-44. 3 White, The Republican Era, 392.
141
extraordinary degree, virtually every function of the national government. The
political and practical realities that underscored Congress’s supervisory power
had long encouraged the heads of the various executive departments to look to
Congress, not to the president, for guidance respecting the departments’
jurisdictional and operational responsibilities.4 In such a manner were the cabinet secretaries made directly accountable to Congress and to the congressional committees responsible for the oversight of their respective departments.
The social and economic changes responsible for the growing involvement of the federal government in many new areas of public life, however, would prove too demanding for such arrangements to continue uninterrupted. A new era of reform, addressing an increasingly diverse set of domestic issues, would raise expectations concerning the process of policymaking and produce
new demands upon government performance. The functioning of government,
made more complicated by the acquisition of overseas possessions, had simply
become too complex and its management far too involved to accommodate the
more traditional and deliberative process of congressional policy-making. The
very nature of congressional oversight had long made continuity in policy or
flexibility in administration, the hallmarks of a modern and efficient bureaucratic system, difficult. Given the changing political pluralities to which it was frequently subject, Congress clearly lacked the capacity to provide the consistency or predictability that modern management required or the ability to adjust to a
4 White, The Republican Era, 259, 54, 58-60; Stephen J. Diner, A Very Different Age: Americans of the Progressive Era (New York: Hill and Wang, 1998), 213-215.
142 growing range of administrative responsibilities and the political controversies surrounding them. In an age when the corporate management model, along with its emphasis upon centralized decision-making, was increasingly regarded as a portent of the future, a new climate of opinion, which looked more favorably upon a broader interpretation of executive power, had begun to emerge.
Discovering the Power of Bureaucracy
Theodore Roosevelt's term as president thus coincided with historical trends that were destined to change the direction in which relations between the executive and legislative branches of the federal government would develop.
Foremost among them was the federal government's involvement with a growing list of regulatory responsibilities, which contributed significantly to the systematization and standardization of the administrative processes involved.
These processes, and the new procedures and organizational structures they introduced, not only made the actual transfer of discretionary authority to the executive branch appear more reasonable and, therefore, less controversial, but also, given the nation’s emergence as a world power, became closely identified with the nation’s growing sense of national power and prestige. As long as it felt some ambivalence about the deeper implications of this trend, Congress could do little to resist it. Considerations of party loyalty and discipline, the traditional underpinnings of congressional policymaking, were of little consequence in a political environment that increasingly provided public figures, through the growing reach of mass circulation journalism and the rise of a new issue-oriented style of politics, with opportunities to forge a more direct and personal link with
143
the voting public.5 In the face of an ever increasing number of legislative issues,
Congress had simply become too decentralized as the work of its committees
had become increasingly specialized and dependent upon the developing
expertise of the executive branch to be able to conduct the government’s
business as it once had.
This state of affairs presented a new and especially promising opportunity
for Roosevelt, who had come to office determined to exercise a greater measure
of independence in the performance of his duties and to obtain wider recognition
of his role as a policy initiator. In the past, presidents had only rarely influenced
the choices made by their party’s congressional leadership regarding that body’s
legislative program and priorities. As Roosevelt must surely have understood,
the key, then, to achieving the most ambitious goals of his agenda lay in
whatever success he could achieve in influencing the very process by which
Congress made these choices. Much as his predecessors had done, William
McKinley had chosen to rely upon his close relations with his party’s
congressional leadership to guide his administration through a difficult period of
economic transition and a growing involvement in world affairs, a decision likely
influenced by his long service in Congress. Roosevelt, however, lacking such
credentials, broke with this tradition and elected to use the assets, including the
weight of public opinion, that were available to him to influence Congress’ policy
choices. An activist by temperament, he was determined to inject himself into
5 David H. Burton, Theodore Roosevelt, American Politician: An Assessment (Cranbury, NJ: Associated University Presses, Inc., 199), 27-35; J. Leonard Bates, "Fulfilling American Democracy: The Conservation Movement, 1907 to 1921," The Mississippi Valley Historical Review 44, no. 1 (June, 1967): 29-57, 34.
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the most significant, on-going public debates of his time and to emerge as a
respected and powerful national leader.6 However, like McKinley, whom he had
succeeded to the presidency, Roosevelt lacked the institutional support that he,
as chief executive, would require to assert his independence and with which he
could minimize the risk of losing, through failure and disappointment, what
support he might attract in Congress and among the public at large.7 To make
up for this deficiency, Roosevelt had sought instead to project an image of
himself as a vigorous advocate on behalf of the national interest - taking care to define that interest in such a way as to curry favorable public opinion – and to use what public support he was able to attract to wrest control of the government's administrative apparatus from Congress.8
From his first day in office, Roosevelt was confronted with many hard and
unresolved questions regarding the management of the government's emerging
bureaucracy. Roosevelt's experience in government and progressive politics
helped him to realize that the real substance of reform extended well beyond
popular concerns regarding the honesty and administrative competency of those
who served in government to include questions concerning the effectiveness with
which the machinery of government could administer to the developing functions
of government. He understood, almost intuitively, that in matters involving public
administration, any perception of weakness in the authority that he, as chief executive, wielded would lead to problems of implementation, which, in turn,
6 Burton, Theodore Roosevelt, American Politician, 107. 7 White, The Republican Era, 17. 8 Eric Rauschway, Murdering McKinley, The Making of Theodore Roosevelt’s America (New York: Hill and Wang, 2003), 186.
145 would effectively undercut whatever authority he had remaining.9 What powers he exercised as president would clearly depend upon the executive departments and bureaus that would ultimately be responsible for translating his decisions into action and firm results. Recognizing that he could not, in the absence of congressional approval, effect a closer integration of the departments comprising his cabinet because of their distinctive tasks and ties to the legislature, Roosevelt opted to pursue a more coordinative approach centered within his own office and sustained by the force of public opinion. To accomplish this task, he would not only have to demonstrate that he spoke for the national interest, but that he could be held accountable to the national constituency to whom he directed his appeals. He would begin by addressing the federal government’s failure to resolve what many considered as the most pressing of all threats to the nation’s political institutions and traditional values.
The new corporate economy, with its technological innovations and organizational advancements, had been responsible for a type of economic and industrial growth that far exceeded in productivity and size anything the nation had ever experienced. Before too long, the very scale of these industrial operations, stretching as they did across state borders, challenged the jurisdictional reach of the states, undermining the states’ regulatory power and weakening their ability to counteract the negative repercussions of the nation’s economic and industrial growth. The imbalances that resulted helped to refocus attention upon the use of federal power as a means both of overcoming the
9 White, The Republican Era, 17; Malcolm M. Feeley and Austin D. Sarat. The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration (Minneapolis: University of Minnesota Press. 1980), 11.
146
states’ jurisdictional problems of jurisdiction and of controlling the monopolistic
practices of the offending corporations. In relatively short order, Congress
passed the Interstate Commerce Act of 1887, which established a commission to
regulate interstate railway rates, and enacted the Sherman Antitrust Act of 1890,
which outlawed all business combinations or trusts that operated in restraint of
inter-state trade. Neither measure, however, was able to satisfactorily achieve the expectations of their sponsors or supporters. The Interstate Commerce
Commission (ICC), still in its infancy as a regulatory power, lacked the authority it
needed to enforce its decisions, and the Sherman antitrust act, suffering
problems of a definitional nature and imposing standards that proved too rigid to
be practical, proved difficult to administer, more so after the Sherman Anti-trust
Act was effectively eviscerated by the Supreme Court's 1895 decision in the case
of United States v. E. C. Knight Co., which, by distinguishing between interstate
transportation and the manufacture of commodities, limited the application of the
Act and, therefore, its usefulness as a regulatory device.10 The growing
proliferation of trusts and unchecked business mergers daily provided clear illustrations of the weakness of Congress’ economic controls and fueled the
controversy surrounding the monopolistic practices that resulted.11
One the Roosevelt administration's earliest forays into the field of antitrust litigation involved a legal action it had filed to prevent the consolidation of three of the nation's largest railway systems (the Northern Securities Company, Ltd.).
The President, however, was not favorably disposed to using litigation as an
10 156 U.S. 1 (1895). 11 Johnson, “Antitrust Policy In Transition,” 419-420.
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instrument of anti-trust policy. Given the weakness of the few laws that were
available for enforcement purposes, litigation offered little assurance of a
favorable outcome, was sure to be curtailed by the limited manpower resources
of the Department of Justice, and would be extraordinarily time-consuming, a
factor that would reduce any leverage the President might derive from even the
most successful of possible conclusions. Roosevelt was convinced that the anti-
trust laws alone could not prevent the abuses of a corporation that was determined to engage in what were essentially anti-competitive practices. On the
other hand, he was strongly opposed to any business practice that could
constrict the market to such a degree as to deny the nation the benefits of an
economic system capable of achieving the kind of market integration and large
scale production that had become a symbol for its unity and strength. If this
concentration of economic power was, as he believed, an inevitable
characteristic of modern economic growth, this fact alone did not exempt it from
continuing government scrutiny and regulation. For as long as such industrial or
business combinations were protected under the nation’s laws and by its
institutions, they were, he believed, obligated to accept some degree of
regulation or control in the public interest.12 The government’s attempt to block the Northern Securities merger, however, given the complex legal issues involved and the resistance met, failed initially to produce the results the
President had hoped for and became a source of frustration for the President that would greatly strain his once close relationship with Attorney General Philander
12 Edmund Morris, Theodore Rex (New York: Random House, 2001), 71-74; Howard Gillman, The Constitution Besieged; the Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 150-151.
148
Knox. Having committed himself to a vigorous anti-trust program, Roosevelt now
faced a national constituency that was far more prepared than its political
leadership to adopt more extreme anti-monopolistic measures. Complicating matters further for the President, Congress, feeling similarly pressed, had begun its own examination of a broad range of possible alternatives to the Sherman
Anti--trust Act. Roosevelt's reaction to Congress’ interest was guarded. From the
President’s perspective, there was much at stake. The role he had intended to play fell somewhere between that of mediator and enforcer. Whatever success
he could achieve would depend greatly upon the resources at his command and
especially the latitude he would be given to force the nation's largest business
combinations into voluntarily complying with the spirit of the antitrust law.
Unwilling to support those in Congress who had proposed to strengthen the legal
authority of the ICC - a step that would effectively reduce his own discretionary
authority in the matter – Roosevelt vigorously promoted, as the preferred
alternative, a proposal calling for the establishment of a new department, the
Department of Commerce, which would include a Bureau of Corporations that could monitor business formation and all aspects of industrial production and provide the President with the technical support he would require to come to terms with the trusts.13
In early 1904, following the establishment of the Department of Commerce
and Labor, the new Bureau of Corporations, headed by James R. Garfield, the
son of a former president, began to provide Roosevelt with the information he
13 Morris, Theodore Rex, 205-206; Ron Chernow, Titan: The Life of John D. Rockefeller, Sr. (New York: Random House, 1998), 434.
149
had sought regarding the largest and most powerful companies in the nation.
Included among the trusts the Bureau was monitoring was the Standard Oil
Company, which had already become the subject of an expose’ in connection
with the company’s rebate schemes and its collusion with the railroads to
eliminate its competition.14 Though the Bureau soon became indispensable to the President as a ready source of intelligence and analytical expertise, it could
not substantially help the President overcome the difficulties he encountered in
checking some of the trusts’ more visible abuses. Variously employing the threat of public disclosure or the promise of important concessions, Roosevelt found
himself increasingly overextended and frequently disappointed by the reluctance
of the trusts to conform their behavior to the President’s and the public’s
expectations. The corporations’ growing resistance to its inquiries had become
especially troublesome for the Bureau of Corporations. Not only did the Bureau
lack the authority to compel the companies it monitored to provide it with the
information it required to complete this task, but it had suffered serious blows to
its claims of impartiality as a result of the rumors that had circulated during the
1904 election regarding the use of its confidential files to extort contributions to
Republican candidates.15 Public reaction to the exposure of the Standard Oil
Company’s business practices, however, quickly removed the matter from the
President’s hands. The production of refined oil had become too important for
the process to be dominated by a single company.16 Not wanting to surrender
control over the issue to Congress and unwilling to settle upon any solution other
14 Chernow, Titan, 443-444 520. 15 Morris, Theodore Rex, 357, 362-363. 16 Chernow, Titan, 520.
150
than one that fully acknowledged his role in the matter, Roosevelt again turned to
the Department of Justice for a solution.
The Department of Justice Comes Into Its Own
No federal department was as deeply involved in the nation’s anti-trust
policy as was the Department of Justice, and none were as ill prepared to meet
the challenge of ensuring its implementation. Founded in 1870, the Department would eventually become one of the principal beneficiaries of the growing power of the executive branch, a fact attributable as much to the Attorney General's unique relationship with the office of the president as it was to the growing recognition of the Department's status as a coordinator of the federal government's diverse litigation and enforcement responsibilities. The Attorney
General's office had been greatly expanded during the Civil War, acquiring additional personnel and a rudimentary administrative structure with which to support the Attorney General's increasingly important role both as an active cabinet officer and as a legal and policy adviser to the president.17 Even after the
war, the demands upon the Attorney General, rising principally from the complications of reconstructing the southern states and the establishment of
systems for revenue and public finance, continued unabated. Though still wary
of centralizing the legal business of government, Congress, in 1870, was finally
forced to give in to the imperatives of cost-cutting and administrative efficiency
and to provide the Attorney General with a department of his own. At the time,
the Department of Justice was expected to do little more than assist the Attorney
17 Nancy V. Baker, Conflicting Loyalties: Law and Politics In the Attorney General's Office, 1789- 1990 (Lawrence: University of Kansas Press, 1992), 55-60.
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General in reducing the sums expended on outside counsel and to promote
greater consistency among the legal opinions rendered by the various executive
departments.18 As a consequence, the Department, unlike the others that had
filled out the president’s cabinet, was placed entirely under the discretionary
control of the Attorney General. This fact alone made its overall function and organization highly responsive to the energies, abilities, and vision of those men who were appointed to the post of the Attorney General and generally immersed the Attorney Generals in the details of the Department’s administration to a degree that their counterparts in the cabinet never experienced.19
Over time, Congress used the Department of Justice as a convenient
place to which to transfer the occasional function, particularly those that seemed
to defy easy categorization. No design or pattern was easily detectable in the
choices that were made, excepting those few that reflected Congress’ desire to
bring a sense of greater cohesiveness to the jurisdictional responsibilities of the
other departments by removing from any extraneous functions. Among the latter,
for example, was the management of all federal prisons, a task that fell within the
province of the Department of the Interior.20 For whatever the reason, whether
because of the discretion the Attorney General’s special relationship with the
chief executive or because of the discretion he exercised in determining the
course of federal litigation and, by extension, the implementation of federal
18 Ibid.,, 62-64. 19 Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (London: Armonk, NY: M. E. Sharp, Inc., 1992), 25-60. 20 Federal prisons were established at Leavenworth in 1895, at Atlanta in 1902, and at McNeil Island, Washington State, in 1908. Albert Langeluttig, The Department of Justice of the United States (Baltimore, MD: The Johns Hopkins Press, 1927), 14-15.
152
policy, Congress, displaying "a curious ambivalence about the role of the
Attorney General,” was reluctant to provide the Attorney General with any
additional powers or resources beyond those it assigned.21 Only two years after
the Department was organized, in fact, Congress reinstated the independent
litigating authority of the Post Office Department and the Department of the
Interior, agencies that managed the greatest numbers of federal employees and
oversaw the bulk of its natural resources and land holdings, both politically
sensitive areas. Even as Congress enacted new laws and created new
enforcement powers, it consistently refused the Attorney Generals’ requests for the larger appropriations and staffing increases that were needed to perform the
Department’s growing workload.
It has been suggested that Congress' reluctance to invest additional resources in the Department was motivated, in great part, by its fear of the political ramifications that might result from the inquiries it was periodically called upon to make into accusations respecting government corruption. Indeed, very shortly after it was established, the Department became embroiled in an investigation of one of the most notorious political scandals of the century when it was directed to investigate what became known as the Credit Mobilier affair. In
1872, reports had begun to circulate regarding the activities of the board of directors of the Union Pacific Railroad, which included a number of congressmen, who were rumored to have established a dummy corporation, the
Credit Mobilier, to which they illegally transferred funds for their own personal
21 Griffin Bell, "The Attorney General: the Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?" Fordham Law Review 46 (May 1978), 1054.
153
benefit. As a result of these disclosures, Congress was forced to open an
investigation that resulted, not unexpectedly, in a much criticized and
inconclusive outcome. Congress’ reluctance to pursue the matter more vigorously provoked a great public outcry and resulted in the appointment of a special assistant to the Attorney General who was authorized to investigate anyone implicated in the matter.22 The special assistant and those who were appointed on later occasions were generally selected on the basis of their reputations for independent judgment and for their non-partisanship, qualities that were believed more likely to restore public confidence in the integrity of the government. By no little irony did their work, as exemplified in the subsequent
"Whiskey Ring” 23 and "Star Route”24 scandals, actually enhance the Attorney
General’s status as the titular head of the government's legal arm and identify the
Department of Justice, by whom the special prosecutors were employed, as the
most appropriate mechanism for the investigation and prosecution of corruption
in government. From the Attorney General’s vantage point, however, this new
assignment, despite the benefit the Department’s image stood to gain, was far
more likely to strain the Department’s few assets and resources and make it
further unlikely to obtain congressional support for its expansion. The problem
22 Jean Edward Smith, Grant (New York, NY: Simon & Schuster, 2001), 552-553. 23 Benjamin H. Bristow, who had soldiered with Grant during the Civil War and became the first man to serve as solicitor general of the United States, was among the few in Grant’s cabinet about whom it was said that he “brought a reforming zeal to the Grant administration.” As Secretary of the Treasury, he was responsible for establishing civil service rules for the Department’s new employees and investigating corruption in the Department’s relations with distillers in the liquor industry. Smith, Grant, 582-583. 24 To extend its services, especially in the American West, the Post Office Department developed the practice of awarding contracts to private carriers, but soon discovered that the entire process had been infected with fraud and influence peddling. Among those principally responsible for this scandalous state of affairs were the secretary of the Republican National Party and a senator whose conviction and removal from Congress threatened to destroy the Republican Party's one-vote majority in the senate. Baker, Conflicting Loyalties, 130-133.
154
was further aggravated by the fact that the positions created were only temporary, a situation that prevented the Attorney General both from determining what role the special assistants would perform other than those for which they
were specifically authorized by Congress and from exercising any direct
influence over their activities in the field. In some ways, the relationship between the specially appointed assistants and the Attorney General did not differ significantly from that between the Attorney General and the United States
Attorneys in each of the judicial districts. Congress’s insistence upon its right to define the roles of the special assistants and to restrict their authority suggests that it was not willing to provide the Attorney General with any greater discretion, regardless of the political circumstances, than that ordinarily allowed the cabinet- level heads of the other federal departments.
By the early 1890s, however, as the era of regulatory law came into its own, the expanding scope of federal jurisdiction and the growing complexities
involved in the enforcement of the nation’s regulatory policies threatened to overwhelm the organizational resources upon which the Department relied.
Under such pressure, the internal structure of the Department of Justice began to
change, and its authority over the enforcement machinery of the federal
government continued to grow, if somewhat sporadically. From the very first
years of its operation, the Department had labored under a serious handicap:
regardless of any increases in personnel or in the appropriations it received, the
Department’s strength was never truly commensurate with its ability to meet all of
its assigned responsibilities. For years after its founding, the Department
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remained a relatively small organization - too small to even justify
compartmentalizing its workforce despite the growing list of tasks for which it had
become responsible. Gradually, as the Department continued to take on a wider range of duties and administrative tasks, increased specialization among its
personnel and the introduction of a hierarchical structure became inevitable.
This process reached a milestone of sorts in 1903, when the office of Assistant to
the Attorney General was established by Congress to free the Attorney General
from many of his administrative duties and to allow him more time for his policy-
making and advisory roles. That same year, the Attorney General created the
first of the Department’s functioning divisions,25 a step that reinforced and
streamlined the Department's budding hierarchical structure and provided it with
the capacity to more easily adjust to new administrative responsibilities. These innovations were to produce two important results: first, they provided the
Attorney General with an incentive to consolidate the management of the
Department’s resources in Washington, and, second, they offered the
Department an opportunity to play an increasingly important role in the
implementation of national policy.
The Attorney General’s status as a cabinet officer, with direct access to
the president and authority over the Department of Justice, was not by itself
sufficient to resolve the questions that arose regarding the place of the United
States Attorneys in the Department’s hierarchy. No other issue carried more
significance for the Department’s future than that involving supervision of the
Department’s field operations. It was the United States Attorneys in each of the
25 Clayton, The Politics of Justice, 30.
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federal judicial districts who actually attended to the legal affairs of the
government and upon whose shoulders lay the bulk of the Department’s work.
Yet even as the nature and pace of the work of their offices changed and even
they came to appreciate the importance of standardization and coordination
among their offices, the U.S. Attorneys remained sensitive to any encroachment
upon their prerogatives as presidential appointees and resistant to the Attorney
General’s attempts to impose some degree of centralized direction over their
activity. The appointment of federal prosecuting attorneys had always been (and
remains) a process deeply immersed in politics, a factor that reflected the
continuing importance of the successful candidates’ local political ties and which
generally explained the strong sense of independence with which the U.S.
Attorneys acted in their relations with the Attorney General. That sense of
autonomy was directly attributable to the fact that their authority had been established by the Judiciary Act of 1779, which defined their positions as quasi- judicial in nature and made them directly subject to presidential appointment.26
Though placed under the nominal supervision of the Attorney General in 1870 and made more directly answerable to the Attorney General in 1874,27 the U.S.
Attorneys remained, nonetheless, somewhat apart, a situation that made their
relations with the Department of Justice unclear and frequently strained.
The independence with which the U.S. Attorneys performed their duties,
however, was a reflection of considerably more than their status as political
appointees. It found reinforcement in other factors associated with their offices
26 1 US Stat. L., Ch. 20; Baker, Conflicting Loyalties, 47-49. 27 Oliver A. Harker, “The Supervision of United States District Attorneys By the Attorney General In Criminal Cases,” University of Illinois Bulletin 11, no. 13 (November 24, 1913), 2, 4-6.
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and the responsibilities they carried. One important consideration, certainly, was
their remoteness from the seat of government, which gave them considerable
latitude to exercise their judgment on behalf of the federal government, but there
were others including their familiarity with the people, customs, and conditions
that were unique to their individual districts and the freedom they possessed to
obtain the cooperation of, or guidance from, any number of local and national
sources, the latter including departments or bureaus other than the Department
of Justice. There was also the matter of the work itself, which, because it varied
from district to district and differed so greatly in volume, produced very distinctive
characteristics in the practices of the U.S. Attorneys, resulting in an array of
organizational structures and procedures and great differences in the choice of
strategies used in litigation undertaken on behalf of the government.28 These
differences were made more substantial by the addition of new judicial districts
and courts that were established to service the nation’s territorial expansion and economic growth. Given these developments, it remained a foregone conclusion that any effort on the part of the Attorney General to introduce some level of consistency, efficiency, and organizational coherence to the U.S. Attorneys’ operations was bound to be exceedingly difficult.
In time, the Attorney General did, nevertheless, meet with some minor success in achieving these goals. This progress was the result of three developments that proved to be instrumental in extending the Attorney General’s
28 Homer S. Cummings and Carl McFarland, Federal Justice (New York: The Macmillan Company, 1937), 367; Raymond Moley, Politics and Criminal Prosecution, (New York: Minton, Balch & Co., 1929), 71; see James Eisentein, Counsel for the United States: U.S. Attorneys In the Political and Legal Systems (Baltimore, MD: The Johns Hopkins University press, 1978).
158
authority over the whole range of federal litigation. The first actually began well
prior to the establishment of the Department and was a direct result of the
haphazard way in which the business of the federal government was originally
organized and conducted. The Judiciary Act of 1789, which established the
authority of the U.S. marshals, made it possible for them to perform services for
each of the federal branches of government: to serve, in effect, as a resource
available not only to the courts, but to the executive branch as well. As a
consequence, the marshals were repeatedly called upon to attend to such
diverse matters as conducting the official census, disseminating copies of
enacted legislation, and registering aliens.29 Over time, as their work became
more closely identified with the judicial branch, supervisory responsibility over the
marshals was placed in the hands of the Attorney General, though the
responsibility for auditing their activities remained a function of the Interior
Department, an arrangement which proved inadequate in deterring fiscal abuse
and instances of fraud. The men who served as United States marshals did so with limited resources and with virtually no supervision. Their authority was limited to the physical boundaries of their designated districts, but within these
geographical confines they were free to employ whomever they desired to assist
them in the performance of their duties, which gradually were reduced to the service of process, the execution of warrants, and the safeguarding of prisoners.
The deputies hired by the marshals were not, however, regarded as government employees. The marshals were legally and individually accountable for their
29 Frederick Calhoun, The Lawmen: United States Marshals and Their Deputies, 1789-1989 (Washington, D.C.: Smithsonian Institution Press, 1989), 17-19.
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actions and expected to compensate their assistants and employees from the
monies that were allocated in each district for the services rendered. Deputies,
for example, received no salaries, but were paid a fee for each process served.
Other often more lucrative opportunities to earn additional income were provided
by private parties seeking execution of a warrant or from the rewards posted by the various departments for the apprehension of persons against whom warrants had been issued.30 With the establishment of the Department of Justice,
however, the auditing process underwent a gradual transformation.31
Beginning in 1871 Congress began to include in the Department's
appropriations small annual sums for the detection and investigation of crime.
From time to time, additional sums were provided to fund specially authorized
investigations of such matters as reports of electoral fraud. But by the end of the
decade, these supplementary appropriations were more often earmarked for
other administrative and operational purposes for which the Department was held
accountable in detail. As a consequence, a specially selected Department
employee, designated the General Agent, was assigned to perform this task, which, for a while, drew little attention. Then, in 1881, Congress, moved to take action by revelations of widespread fraud among postal employees and alarmed
by the growing volume of questionable claims submitted on behalf of the
marshals and their deputies, was finally prodded into action. While the reported
misdeeds of government employees would prove influential in the subsequent
30 Ibid., 135-137, 155-157. 31 Cummings and McFarland. Federal Justice , 493-494.
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enactment of the Pendleton Civil Service Reform Act in 188332, the Justice
Department was authorized, in the interim, to enforce rigid reporting requirements and other internal controls through the deployment of a small group of field examiners. In 1882, the General Agent, now supervising a small staff of examiners and answering directly to the Attorney General, was entrusted with the responsibility for auditing the accounts, office expenditures, and, in effect, the official conduct of not only the marshals, but, even more significantly, the U.S.
Attorneys and their staffs.33
What reaction the U.S. Attorneys may have had to this intrusion was likely
to have been muted by the realization that it was Congress, the source of their funding, which had insisted upon the imposition of these controls. Regardless, there was another, more worrisome development to which they were adjusting, the restructured and expanded jurisdiction of the federal judiciary. In 1891, an
entirely new tier of intermediate appellate courts was established, and the overall
number of federal circuit and district judges were increased to meet and more
rapidly process an ever growing number of cases, the result both of the nation’s
accelerated economic development and of a growing body of federal law.34 A growing percentage of this legislation involved regulatory statutes that were
32 Leonard D. White, The Republican Era, 1869-1901: A Study In Administrative History (New York: The Macmillan Co., 1958), 18, 393 33 Cummings and McFarland, Federal Justice, 374-375; Eisenstein, Counsel For the United States, 9-10. 34 Steven Edward Cresswell, Mormons & Cowboys, Moonshiners & Klansmen: Federal Law Enforcement In the South and West, 1870-1893 (Tuscaloosa: the University of Alabama Press, 1991), 262-263. That same year, magistrates were also authorized to issue search warrants not only to the marshals, but to "any other person specifically mentioned in search warrant," a measure that resulted in a significant increase in the number of warrants issued and executed annually. David R. Johnson, Illegal Tender: Counterfeiting and the Secret Service In Nineteenth- Century America. Washington: Smithsonian Institution Press, 1995, 113.)
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enforceable by means of both civil and criminal sanctions, required a far more sophisticated and sustained effort on the part of those representing the government than that to which they had been accustomed. Complicating matters
further was the fact that the legal environment in which the U.S. Attorneys
conducted their business on behalf of the government was itself becoming more
formal and procedurally oriented, especially in its treatment of evidentiary issues,
a byproduct of the growing influence of this reorganized appellate system and a
growing emphasis on the part of the defense bar upon issues invoking rights
protected under the fourth, fifth, sixth, and eighth amendments.35 The overall
effect of the court’s structural changes for the U.S. Attorneys, therefore, resulted
in much increased workloads, greater demands respecting the attention paid to
the procedural detail of litigation, and the more sophisticated preparation of the
government’s cases. These changes greatly taxed the individual offices of the
U.S. Attorney, forcing them to prioritize and to become more selective in the
handling of the cases referred to them, and making them more dependent both
upon the resources wielded by the Department of Justice and its direction in
matters concerning policy. It was, then, to the Department, with its ties to the
president and its relations with Congress, that the U.S. Attorneys eventually
turned for solutions to the problems increasingly affecting the operation of their
offices: a shortage of funds and manpower, limited resources with which to
accommodate the new demands of the judiciary, and relief from the demands of
their local constituencies, which, energized by the forces of reform, were
35 Erwin C. Surrency, History of the Federal Courts (New York: Oceana Publications, Inc., 1987), 220.
162
pressuring them to apply their expanded authority in any number of new
regulatory or law enforcement matters. In time, the U.S. Attorneys began to
appreciate the advantages that the larger organizational context of the
Department provided them. As modern regulatory enforcement, with its
emphasis upon cross-border or interstate activity and its involvement with policy
considerations that often extended well beyond their districts, grew more
complex, the U.S. Attorneys became increasingly responsive to the policy
directives originating in Washington.
Theodore Roosevelt, His Attorney Generals, and the Trusts
Theodore Roosevelt's vision for his presidency was never more clearly
articulated than on those occasions when his administration was vigorously
pursuing the ends for which he believed the government principally responsible.
His whole purpose had been to energize its investigative power and
administrative authority so as to make the government's involvement on behalf of
the public interest a vital and continuing one.36 Until Roosevelt’s elevation to the presidency, however, the general perception of the Attorney General tended to
emphasize his advisory role in which he was, while remaining politically
conscious, expected to be detached in his views and deliberative in his counsel,
a reflection of his quasi-judicial obligations. The establishment of the Department
of Justice presented the Attorney General with an opportunity to perform yet
another function, that of the head of a governmental agency, which made him,
therefore, responsible not merely for the administration of a government agency,
but for the interpretation and implementation of Departmental policy as well. The
36 Johnson, “Antitrust Policy In Transition,” 419-420.
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new president had inherited McKinley's Attorney General Philander C. Knox, a wealthy corporate lawyer who, until then, was perhaps best known for his work
on the formation of the Carnegie Steel Corporation. Though a capable administrator, Knox had been unable to bring to a successful conclusion any of the trust prosecutions, with the exception of that against the Northern Securities
Company, which the Department had initiated at Roosevelt’s direction. Equally of concern to the President was the fact that his Attorney General, despite their growing friendship, had been unable to display the reformist zeal, the initiative, or the political acumen that Roosevelt required of his principal enforcer.37 Whatever
the reason, Knox’s growing political ambitions, his personal views regarding the
respect to be accorded wealth and power, or, more likely, his too casual attitude
toward enforcement, the President gradually lost confidence in the man he had
hoped would help him to craft the role he had sought for his administration.
Roosevelt’s acceptance of the nation’s corporate economy had never, to his
mind, meant that the country had to countenance business practices that he saw
as harmful to society. In distancing himself somewhat from the nation’s antitrust
laws, Roosevelt was not so much motivated by his concerns regarding their
adequacy as by his desire to apply more flexible and manageable standards in
determining whether the behavior of corporate leaders was appropriate or not.
What he needed was a stick.
After Knox accepted an appointment to fill the recently vacated seat of a
deceased senator from Pennsylvania, William Moody, then Secretary of the Navy
37 William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legality, 1889- 1932 (New York: The Bobbs-Merrill Company, Inc., 1996), 95; Edmund Morris, The Rise of Theodore Roosevelt (New York: Coward, McCann and Geohagen, Inc., 1979), 366.
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and a close personal friend and former Harvard classmate of the President’s,
was selected to succeed him. Moody, who had studied law under Richard Henry
Dana and had served briefly as the U.S. Attorney for Eastern Massachusetts,38 proved to be more amenable to Roosevelt's trust-busting strategies, which, in light of the Department's limited manpower resources, offered a more promising alternative to the prospect of protracted litigation. Much as would James
Garfield, the director of the Bureau of Corporations, Moody provided the
President with access to the Department’s resources and offered his unqualified support for the President’s efforts to secure, through private negotiations with the trusts, the sorts of agreements that would bear out the wisdom of Roosevelt’s highly personalized approach to economic regulation. Roosevelt’s reasoning respecting the trusts, however, rested on several flawed assumptions, among them, that the federal government would be in control of the process by which the trusts could be pressured into reigning in their monopolistic tendencies and that the offending trusts would remain especially sensitive to public disapprobation. Neither was to prove to be true.
The President’s initial success in dealing with the trusts, and the cooperation he received from those, including J. P. Morgan, who promoted their interests, obscured the fact that his decisions regarding what constituted “bad” as opposed to “good” trusts were largely dictated by the sway of public opinion and were often instigated by developments outside of his control. Roosevelt’s trust- busting policy was essentially reactive in nature and, while offering considerable
38 Where he had gained widespread notoriety as one of the prosecutors in the 1893 trial of Lizzie Borden.
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flexibility in its implementation, was lacking in any recognizable criteria or
procedure with which to make its use among the targeted trusts consistent or its
continuity as a recognizable and formal policy of government more assured. The
Department’s anti-trust action against the Northern Securities Company, for
example, had been provoked by the public outcry that had followed a federal
court’s dismissal of the lawsuit filed against it by the state of Minnesota.39
Despite his reservations as to whether the trust constituted a restraint in trade,
Attorney General Knox, pushed into filing suit by a president who recognized the power of public opinion, proceeded to act under the provisions of the Sherman
Anti-trust Act. Roosevelt’s response to the crisis amounted to a bid for time – time in which to craft an agreement that would acknowledge the government’s interest, but, even more, prove to an outraged public that the chief executive had acted decisively in facing down a powerful trust. No agreement, however, had been forthcoming, and the administration would be forced to pursue the case down a path against which so many of the President’s advisers and congressional allies were counseling against.40
Such disappointments became increasingly more common as the
President’s experience with the Standard Oil Company was to illustrate.
Journalist Ida Tarbell’s articles describing the oil company’s ant-competitive
behavior are often credited with forcing the President to take a highly publicized
stance against the nation’s largest oil trust. There were, nonetheless, other
reasons for the President to feel especially confidant about the probable outcome
39 Morris, Theodore Rex, 89-90. 40 Ibid., 312-316.
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of any intervention on his part. In early 1905, pressured by independent oil
producers and refiners in Kansas, Texas, and throughout the West, Congress
called for an investigation of the oil conglomerate, itself just beginning to feel the
effects of increased foreign competition and unprecedented and unwieldy growth
throughout the industry.41 On this occasion, however, the President elected to
pursue a different strategy. Armed with a report that had been prepared at his
request by the Bureau of Corporations and which detailed the secret agreements
that had been struck between the oil conglomerate and the railways to establish
a virtual stranglehold over the oil trust’s domestic competitors, Roosevelt called
for the enactment of a bill that proposed to give the Interstate Commerce
Commission the power to set freighting rates for all of the nation’s railway
systems and to compel disclosure of information pertaining to their operation.
The Standard Oil Company, however, smarting from the President’s vitriolic
attack, proved defiant in the face of such pressure, refusing to cooperate any
further with the Bureau, and spurning the advice it received urging it to cooperate
with the government. By mid-1907, six states had launched assaults against the
trust and several of its subsidiaries. The administration, again caught dallying,
was forced to play catch-up and to rely upon litigation as the primary tool of its
anti-trust policy. 42 Even in this more favorable anti-trust environment, the
question arose as to whether the Department possessed sufficient resources to
meet this on-going responsibility and to adjust to the new set of priorities soon to be foisted upon it?
41 Chernow, Titan, 520; Margaret L. Davis, Dark Side of Fortune: Triumph and Scandal In the Life of Oil Tycoon Edward L. Doheny (Berkeley: University of California Press, 1998), 78-79. 42 Chernow, Titan, 523, 538-539.
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Moody’s stewardship over the Department would be relatively brief, and
his accomplishments, through no fault of his own, of small consequence. As
Attorney General, he could not have served during a more troubled time for his
President. Following the President’s reelection in 1904 and the announcement of
his intention to forego a second full term, Roosevelt began to experience greater
Congressional resistance to his legislative agenda and increased difficulty in
acquiring the political leverage he so badly needed to succeed as a chief
executive. The President’s attempts to rally the more progressive elements of
his party succeeded instead in further weakening his base of support and
reinforcing the very elements of the Republican Party, particularly its
conservative faction in Congress, the “Old Guard,” which had never really
embraced his reforms, remained resentful of his leadership, and were prepared
to resist any further encroachment upon what they perceived as their
prerogatives and authority, both in Congress and the Republican party.43 That resistance took many forms, but eventually, and quite openly, coalesced around a growing set of issues, among which was the administration's aggressive policies toward the conservation and management of the nation's natural resources. It was against this backdrop that questions regarding the president's employment of field operatives on behalf of the Department of Justice to investigate rumors concerning the misuse of federal lands were initially raised.
Though a peripheral issue, it was one that came to reflect all that was at the very
43 Carl E. Hatch, The Big Stick and the Congressional Gavel (New York: Pageant Press, Inc., 1967), 35; Burton, Theodore Roosevelt, American Politician, 127.
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core of an increasingly contentious relationship between the executive and
legislative branches.
In 1906, following Moody’s appointment to the Supreme Court, Roosevelt turned to yet another acquaintance, a member of a small circle of people who
were, privately or in an official capacity, to influence his views concerning reform.
None would match Charles J. Bonaparte’s energy and dedication as a policy
advocate on behalf of his president. Bonaparte, one of the leaders of the clean-
government movement in Baltimore, had been among the founders of the
National Municipal League, an organization that soon became the driving force in
municipal and government reform. Bonaparte had first encountered Roosevelt
when the latter was active as a member of the federal Civil Service
Commission.44 More than any other member of Roosevelt’s cabinet, he shared
the President's vision regarding the government’s potential as force for reform
and the possibilities offered through direct action, a sentiment aptly captured in
the address that he, the newly appointed Attorney General, delivered to the
National Municipal League's annual conference in 1906: "The Criminal Law As a
Means To Give Effect To the People's Will."45 Bonaparte had served as a
member of the Board of Indian Commissioners in 1902 and had been
responsible for rooting out the corruption that had infected its field operations. In
1905, he was appointed Secretary of the Navy, and a little more than a year later, followed his predecessor, William Moody, to the office of the Attorney General.
Under Bonaparte, the Attorney General's relationship with the President
44 Swindler, Court and Constitution, 96. 45 William Bennett Munro. "Notes On Current Municipal Affairs," The American Political Science Review 3, no. 2 (May 1909), 245-252.
169
developed into a far more consequential factor in the Department's operation: not only was the new Attorney General dedicated to providing the reasoning necessary to legally support the President’s many initiatives, but he would go to great lengths to ensure that both he and his Department would as a vigorous
advocates for presidential power.46
The Department of Justice and Executive Power
Aside from its involvement in the President’s anti-trust program and prior
to Bonaparte’s arrival, the Department had pretty much removed itself from
prosecuting those cases of fraud and corruption, save the most conspicuous, that
were occasionally brought to its attention, a “failing” the Attorney General would
later acknowledge with some regret in one of his annual reports.47 Yet even as
increasingly complicated and more pressing issues came to the federal
government’s attention, the Department in Washington, unable to command and
coordinate all of the resources to which it, in theory, could turn, found itself
increasingly on its own in having to deal with the challenges this presented.
Aside from the routine sorts of civil and criminal cases to which the U.S.
Attorneys were accustomed, those involving larger considerations of policy, and,
inevitably, the direct involvement of the Attorney General, were regarded with
some wariness by the U.S. Attorneys who were more inclined to see them more
as a threat to their initiative and a drain upon their resources. Bonaparte, left
without the benefit of a field staff, could not tolerate this situation indefinitely.
46 "The Attorney General and Presidential Power: Robert H. Jackson, Franklin Roosevelt, and the Prerogative Presidency," Presidential Studies Quarterly, 12, no. 1 (Winter 1982): 60-61. 47 Annual Report of the Attorney General of the United States For the Year 1909 (Washington: Government Printing Office, 1909), 16.
170
Recognizing that he was not alone in his need for an investigative force to assist
in the gathering of evidence and in the prosecution of the Department’s and the
U.S. Attorneys increasingly diverse caseload, he saw in his predicament an opportunity to develop, at the Departmental level, a resource that could be used to extend his influence among the U.S. Attorneys and to coordinate their activities in matters that involved more than a single district. But where was such a resource to be found?
From the Department’s vantage point, the U. S. marshals offered little in the way of the flexibility and efficiency it would require from a force of field operatives. The marshals’ limited tenure, their poorly trained and impermanent force of deputies, and the geographical limitations under which they labored
(their authority did not extend beyond the judicial districts they directly served48) not only made the marshals less able to adapt to changing responsibilities and assignments, but also reduced whatever potential value the marshals possessed as a law enforcement agency.49 These considerations had not prevented the
Department of Justice from employing the marshals for special tasks, but it soon became clear that the marshal’s lacked the funds, the manpower, and the capacity to engage in prolonged investigations even when, as in the case of illicit trading with the Indians, the responsibility of enforcement fell squarely on their shoulders.50 By 1907, even the Department of Justice had to concede that the
48 Langeluttig, The Department of Justice of the United States, 83-84. 49 Arthur Millspaugh, Crime Control By the National Government (Washington: Brookings Institution, 1937), 74. 50 Ethan Avram Nadelman, Cops Across Borders: The Internationalization of United States Criminal Law Enforcement (University Park, Pa.: Penn State University Press, 1993), 49; Calhoun, The Lawmen, 165.
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practice of using the marshals, in place of a select and experienced force was
proving too costly and ineffective to continue indefinitely. 51
Under these circumstances, the Department of Justice had little other
alternative, given its growing investigative needs, than to rely upon temporary
arrangements with other departments or private detective agencies. The
Postmaster’s Office of Inspection, now reorganized and renamed the Division of
Postal Inspectors, was on occasion able to provide some assistance. Recruited
initially from within the ranks of its railway clerks to investigate irregularities in the
nation's postal operations, the inspectors duties soon included investigations of
robberies and the counterfeiting of stamps as well as other crimes committed on
post office property, all tasks which encouraged close relations with local law
enforcement officials and the use of surveillance techniques and other
investigative tools that, for the federal government, were virtually
unprecedented.52 The growing popularity of mass retail and marketing practices
in the latter part of the 19th century, however, along with renewed efforts to
prevent the mails from serving as conduits for such articles as erotic publications and contraceptives, made new demands upon the time and energies of the postal inspectors. Congress, while showing no hesitance in expanding their areas of responsibility, was, nonetheless, reluctant to fund them adequately, leaving the force of inspectors with an insufficient number of personnel to
51 Annual Report of the Attorney General of the United States for the Year 1907 (Washington: Government Printing Office, 1909), 9-10. 52 Nadelman, Cops Across Borders, 47.
172
accomplish their regular duties and, therefore, increasingly unavailable to provide
services that were unrelated to postal operations.53
In the years following the establishment of the Department of Justice, the
variously appointed Attorney Generals tried repeatedly and unsuccessfully to
establish an investigative force within the Department proper. Though unwilling
to authorize such a proposal, Congress was prepared to appropriate additional,
though limited sums of moneys for the detection and prosecution of specific
violations of federal law. A portion of the sums allocated over the next several
years were used increasingly to retain the services of private detective agencies,
the Pinkerton Agency being the most prominent among them.54 Though
increasingly indispensable as a law enforcement tool, detectives and the work for
which they were employed were originally regarded with a good deal of suspicion
and even disdain. Unlike policeman or federal marshals, the private detective’s
skills, resources, and allegiances were available for hire. Detectives were not
averse to resorting to measures of questionable legality and even intimidation to achieve their employer’s objectives,55 a trait which was as distasteful to the general public as was their involvement in “spying” or surveillance and their
association with persons suspected of criminal activity.56 Yet, no matter how it was regarded, the role and function of the detective was becoming an essential
53 Andrea Tone, "Black Market Birth Control: Contraceptive Entrepreneurship and Criminality In the Gilded Age," Journal of American History 87, no. 2 (September 2000), 441-442. 54 Cummings and McFarland, Federal Justice, 373-374; Jane D. Horan, The Pinkertons: The Detective Dynasty That Made History (New York: Crown Publishers, 1967), 350-358. 55 William R. Hunt, Front-Page Detective: William J. Burns and the Detective Profession, 1880- 1930 (Bowling Green, OH: Bowling Green State University Press, 1990), 196. 56 Arthur Train, Courts and Criminals (New York: Charles Scribners Sons, 1924), 90, 91; Kermit L. Hall, Police, Prison, and Punishment: Major Historical Interpretations (New York, NY: Garland Publishing, Inc., 1987), 311.
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part of modern law enforcement, whether private or public in its association,
legitimizing tactics - including undercover operations and the use of informants -
for which detectives were known and were becoming increasingly celebrated.57
In the nation’s urban and industrial centers, the practice of detection
quickly gained favor as an expedient and effective countermeasure to criminal
behavior.58 Private detective agencies were beginning to achieve greater efficiencies from improved methods of organization and central direction:
advantages they were quick to promote. Their mobility and freedom from the jurisdictional and political constraints that typically limited police action and their willingness to operate whenever and wherever necessary (often in ways that made the dividing line between ethical and unethical behavior thin and indistinct) provided the private agencies with an advantage over the police. The moral ambiguity that characterized detective work naturally remained a constant source of concern for federal officials who, nonetheless, were compelled to recognize in the services of the detective the only truly practical recourse available to them.
Detectives had already demonstrated their value in the destruction of smuggling rings for the Customs Bureau and in pursuing and apprehending fugitives for the
United States Attorney's.59 In the end, they became convinced, what
distinguished the unscrupulous from the more respectable detective was the
character and purpose of his employer.
57 J. Anthony Lucas, Big Trouble. New York: Simon & Schuster, 1997), 83-85; Blake Allmendinger, Cowboy: Representations of Labor In An American Work Culture (New York: Oxford University Press, 1992), 111-112. 58 Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, And the Polity, 1880-1920 (Chapel Hill: The University of North Carolina, 1995), 148-149. 59 Nadelman, Cops Across Borders, 25.
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In 1882, however, what ties to outside investigative services federal departments may have enjoyed were suddenly severed by congressional edict.
As was the normal practice then, private detective agencies often provided, as an
adjunct to their detective work, strike breaking services to their industrial clients.
With large numbers of agents at their disposal and clearly predisposed toward
the use of confrontational strategies, the agencies often invited the very kinds of
violence they were supposedly hired to prevent. In an atmosphere charged with industrial conflict, the federal government's principal investigating contractor, the
Pinkerton agency, established a reputation unequalled for the provocative and
violent behavior of its employees. So volatile did the situation become that three
states were compelled to prohibit the kinds of strike breaking tactics employed by
the Pinkertons, going so far as to hold industrial employers liable for any injuries
their workers might suffer at the hands of these private armies. The open
warfare that erupted during the Homestead steel mill strike in 1892 sent shock
waves across the nation and became a rallying cry for those who challenged the
propriety of the industrialist’s tactics and their reliance upon the Pinkertons to
restore order within their plants and the surrounding communities.
In August of that same year, Congress, increasingly outraged by new
revelations of the Pinkerton's heavy handedness, forbade all the executive
departments from employing the Pinkerton agency or any other private detective
organizations.60 As a result, the Department of Justice suddenly found itself
without any investigative resources. The experimental use of agents from the
60 Lukas, Big Trouble, 83; Thomas A. Reppetto, The Blue Parade (New York: The Free Press, 1978), 261-263; Joan M. Jensen, Army Surveillance In America, 1775-1980 (New Haven: Yale University Press, 1991), 40.
175
Department of the Interior, banking examiners, and customs house inspectors as
temporary replacements were all tried, but none could match, either in
organization or in execution, the investigative capabilities and potential of the
Treasury Department's Secret Service. No other federal agency possessed its expertise in field investigation, its ability to liaison among local law enforcement agencies that did not ordinarily communicate with one another, or so extensive an array of sources of information.61 The Service offered certain additional
advantages, the most important of which concerned its uniquely adaptive
capabilities.62 The Service’s potential for becoming an interdepartmental
investigative agency, and all that this negatively implied to a wary Congress,
soon attracted the kind of critical attention both it and the Department of Justice
had wished to avoid and injected them both into a monumental struggle between
the President and the Congress over the proper limits of executive authority.
A Question of Separate Powers
In 1905, the year before Bonaparte was appointed Attorney General,
agents of the Secret Service, on loan to the Department of the Interior, were
dispatched to Colorado to investigate reports concerning illicit withdrawals from
one of the nation's coal reserves. During their investigation, however, one of the agents was killed by unknown assailants. Efforts to identify those responsible, including the coal companies suspected of employing them ended in failure, but
61 Willard B. Gatewood, Jr., Theodore Roosevelt and the Art of Controversy: Episodes of the White House Years (Baton Rouge: Louisiana State University Press, 1970), 240; Cummings and McFarland, Federal Justice, 365-374. 62 Frederick M. Kaiser, "Origins of Secret Service Protection of the President: Personnel, Interagency, and Institutional Conflict," Presidential Studies Quarterly 81, no. 1 (Winter 1988), 101-127, 105.
176 not before the Service’s suspicions regarding the perpetrators and their activities came to the attention of the journalist Lincoln Steffens and, through him, to the public at large.63 The following year, amidst continuing concern regarding the exploitation of federally owned property and the alarming rate at which the nation's forest reserves were being exhausted, the newly appointed Attorney
General was personally directed by the President to initiate another and more extensive investigation. Given the President's concerns regarding the reports he was receiving concerning the possible misdeeds of members of his own party, it is reasonable to believe that Charles Bonaparte’s prior experience in the investigation of government corruption may have been an important consideration in his appointment. Certainly, his previous service as both a special counsel for the Department of Justice in the 1903 investigation of bribery and fraud in the Post Office Department and the principal federal prosecutor in the investigation of the Department of Interior’s management of the Indian
Territory provided him with impressive credentials, but even more, it instilled in him an appreciation of the political implications of the power he wielded on behalf of the government, a consideration Roosevelt could not have missed. For men such as Bonaparte, criminal law and all that it entailed - investigation, prosecution, and punishment - were important ends in themselves, necessary not merely for the protection of society, but for the promotion of important federal interests in their own right. In this instance, both the President and his Attorney
General were convinced that not only had the integrity of the government’s management of the nation's strategic assets been placed in jeopardy, but so, too,
63 Don Wilkie, American Secret Service Agent (New York: A. L. Burt Company, 1934), 61-65.
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had been the president’s authority to control this vital national resource, itself a
significant measure of presidential power that Roosevelt would have never
voluntarily relinquished.64
In 1891, Congress had been moved to create a system of forest preserves
to which the president was authorized, at his discretion, to transfer substantial
portions of federally owned timberland. After he had become president,
Roosevelt had used the discretion allowed him very liberally, but, in the process,
had effectively deprived private industry of opportunities to acquire larger
quantities of cheaply sold timber. The General Land Office, however, retained its
control over vast forest lands located in the states of Oregon and California.
Before too long, rumors began to circulate to the effect that the Land Office,
which was responsible for selling small portions of its land holdings to individual
"settlers," was being defrauded by major timber and mining interests. In due
course, Francis J. Heney, a specially appointed federal prosecutor, was
dispatched to Oregon where, with the assistance of a small force of Secret
Service agents, he breathed new life into the government's faltering investigation.
The subsequent indictments and convictions of those involved in these fraudulent
schemes revealed the extent to which certain government officials, including
Oregon's Republican senator, John M. Mitchell, had been personally complicit.65
The resulting scandal and the publicity it generated left Roosevelt’s critics in the
Congress, a loose coalition of Western Republicans and the Republican Party's
64 Cummings and McFarland, Federal Justice, 376; Harry Overstreet and Bonaro Overstreet, The FBI in Our Open Society (New York: W.W. Norton & Company, Inc., 1969), 18-19; Morris, Theodore Rex, 256. 65 Reppetto, The Blue Parade, 268-269; Philip H. Melanson, The Politics of Protection: The Secret Service In the Terrorist Age (New York: Praeger, 1984), 10; Wilkie, American Secret Service Agent, 65-69.
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"Old Guard," in a politically vulnerable position. The controversy that erupted over the Secret Service’s involvement was little more than a skirmish within a larger, ongoing struggle between Congress and the President over the management of the nation’s natural resources. Shortly after assuming the presidency and on his own initiative, Roosevelt had created a commission to inventory the nation’s natural “assets,” but Congress, rankled by the President’s failure to include it in so important a matter, dismissed the commission’s findings,66 a gesture the meaning of which could hardly have escaped the
President or given him reason to exercise some restraint when Congress also acted to curtail the prosecutorial capabilities of his Department of Justice.
In the years preceding McKinley’s death, the Secret Service had acquired a considerable amount of notoriety. During the 1880s, in response to growing evidence of the presence of Irish terrorists, it had adopted a counterespionage role, using informants and infiltration techniques to identify and arrest agents of the Irish rebellion. Given such displays of its investigative acumen and initiative, the Service’s failure, following the assassination of McKinley, to obtain congressional approval of the measures it had taken to ensure his successor’s safety and to expand its authorized role came as not only a surprise, but proved to be a portent of the tensions that would surround the debate to come. That debate, however, regarding the proper role of the Secret Service, a sensitive subject made even rawer by allegations concerning the political motivations that were believed to be the true motive force behind the Service’s investigation of the
66 Bates, “Fulfilling American Democracy: The Conservation Movement, 1907 to 1921,” 36.
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Oregon congressional delegation, actually masked a far more important issue regarding the nature of executive power.
Criticism of the Service, made harsher by revelations that it had, contrary
to explicit congressional prohibition, continued to employ the Pinkerton Detective
Agency during the 1898 war scare, reached new heights in the aftermath of the
Oregon land fraud indictments, when journalists pursuing the story discovered
evidence that the Service had interpreted its protective responsibility for the
president so as to include intelligence gathering and the surveillance of the most vocal critics of the president’s policies.67 Bonaparte, who had previously advised
Congress of the Department of Justice's dire need for a "small, carefully selected
and experienced [detective] force,”68 was, nevertheless, undeterred by such
concerns and again appeared before the House Appropriations Committee in
March of 1908 to plead his case for an investigative unit. Though he did not
actually require congressional authority to reorganize his Department or his staff
in whatever way he pleased,69 Bonaparte recognized that Congress, unless it were supportive of his proposals, could seriously impact upon the Department’s functioning in other ways, whether by restricting the use of funds or by limiting the “parameters” of the Department’s investigative authority.70 And once again,
he faced an entirely unsympathetic audience. Embarrassed by the indictments
and the revelations that had flowed from the prosecutions that had followed and
doubtful of the Attorney General’s ability to monitor and control the activities of
67 Melanson, The Politics of Protection, 9, 10.; Kaiser, Origins of Secret Service Protection, 104. 68 Annual Report of the Attorney General For the Year 1907, 13. 69 Overstreet and Overstreet, The FBI In Our Open Society, 21 70 Athan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University Press of Kansas, 2004), 15.
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his Department’s investigators, the Committee attached an amendment to its
appropriations bill prohibiting the Secret Service from performing special tasks for
any executive department other than their own.71
What the Attorney General did not divulge, perhaps because he desired to
avoid antagonizing the Committee further, was that efforts within the Department to improve the supervision and control of its investigative staff were already
underway. The framework had been in place practically since the 1880s, when the Department began reassigning many of its newly acquired administrative and
auditing duties to the General Agent. By 1906, the General Agent was overseeing a staff of twenty, seven of whom performed services in connection with the Department’s antitrust cases and were available for special assignments under the direct supervision of a chief examiner.72 Though generally left unsaid,
Bonaparte himself, but for reasons very different from those of the Committee’s
members, was not especially comfortable with the Secret Service’s involvement in the Department of Justice’s affairs, an arrangement that had proven too indispensable to just be discarded without a practical alternative. Despite their contributions, the Secret Service agents the Department had “borrowed” had never really been more than temporary employees, an arrangement that fell short of providing the Department with a much needed capacity for sustained or increasingly complex investigations. The involvement of agents from another
department also threatened to compromise the confidentiality of the Department
71 Gatewood, Theodore Roosevelt and the Art of Controversy, 246-247; Robert Sherrill, “The Selling of the F.B.I.,” Edited by Pat Watters and Stephen Gilles, Investigating The FBI (Garden City, N.Y.: Doubleday, 1973), 51-52. 72 James S. Easby-Smith, The Department of Justice; Its History and Functions (Washington, D.C.: W. H. Loudermilk & Company, 1904), 33-34.
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of Justice’s investigations as the agents were required - a condition imposed
upon their use - to report directly to their supervisors in the Department of
Treasury, a practice which allowed the latter to account and bill the Department
of Justice for the agents’ time and expenses, but which effectively removed
control of all on-going investigations from the Department.73
In the end, not even the Attorney General’s assurances regarding his
intentions to limit the size of the Department’s investigative force and to impose
severe restrictions upon their individual conduct could persuade an
understandably skeptical Committee to provide him with the approval he sought
or to prevent adoption of the proposed amendment. Bonaparte had repeatedly
emphasized in his testimony that the investigators he proposed to hire would substantially enhance the Department's capacity to pursue anti-trust prosecutions and to perform the other tasks the Congress had assigned to his Department.
Yet, though his arguments had been entirely reasonable and pragmatic, they
failed to dispel the apprehension with which many in Congress regarded the establishment of a unified and powerful investigative force. It was at this moment
in the debate when the President, by means of a special message to Congress
that addressed a number of different concerns,74 chose to intervene, attempting, in effect, to go over the heads of the congressmen directly to their constituencies.
Willard Gatewood writes that Roosevelt “was convinced” that his efforts to prosecute certain members of Congress for their influence peddling was the
“primary reason for the passage of the amendment,” a motive, he notes, that
73 Johnson, Illegal Tender, 106. 74 Burton, Theodore Roosevelt, American Politician, 128-129.
182
does not rule out the existence of others for his timing and behavior.75 The
President's deliberate and noisy excoriation of those members of Congress who had obstructed his legislative agenda brought the public squarely into the debate.
Impugning the motives of those who were among his severest critics, he openly sought to obtain the public’s support for his administration's law-enforcement proposals by linking them to the government's continuing ability to enforce the law.76 Law enforcement policy had yet to become the staple of partisan politics
that it would someday be, but Roosevelt’s skillful use of the issue, his willingness
to question whether the government could fulfill one of its basic security functions in the absence of additional manpower, clearly affected public opinion, sufficiently to arouse greater caution on the part of the House, but not enough to overcome its reluctance to sanction the development of an executive agency with a very broad and, therefore, ill-defined mandate.77
Not all those who were opposed to the Attorney General’s requests were
necessarily among Roosevelt’s principal detractors in Congress. There seemed
to be a genuine fear that the powers the President and his Attorney General
sought might well result in the establishment of an organization, potentially a
secret police force, which could pose a real menace to the nation's political
institutions and democratic freedoms. J. Swayar Sherley, though a Democratic
congressman, had been sympathetic to a number of the President’s policies. Yet
75 Gatewood, Theodore Roosevelt and the Art of Controversy, 256. 76 Gentry, J. Edgar Hoover, 113-114; Gatewood, Theodore Roosevelt and the Art of Controversy 256-257. 77 Gatewood, Theodore Roosevelt and the Art of Controversy, 271; Christopher Hibbert, The Roots of Evil: A Social History of Crime and Punishment (Boston: Little, Brown & Co., 1963), 359- 360.
183
he spoke for many of his colleagues in both parties when he cautioned the
Attorney General of the dangers inherent in a secret police: "In my reading of
history,” he observed, “I recall no instance where a government perished
because of the absence of a secret service force, but many there are that
perished as a result of the spy system."78 Such fears were not limited to the
members of Congress alone, but reflected a sentiment that was felt throughout the nation and fed by newspaper editorials that discussed the larger implications of an interdepartmental and centralized detective bureau answerable only to the chief executive. The very nature of detective work, which drew heavily from its association with criminal elements and its reliance upon entrapment and petty corruption, was sufficiently disturbing in its own right to raise questions regarding the propriety of the Attorney General’s request. Given the questionable amount of control that could ever be effectively exercised over the activities of the
Department’s agents, even when they were employed in the public interest, how was the public to be assured that such organizations would be insulated from self-serving ends and abuse?79 The painful memories of previous occasions
during which illicit means had been employed on behalf of the federal government were still quite vivid - one of the most of egregious involving the army, which, in breaking the Pullman strike, permitted its soldiers, despite the
78 Curt Gentry, J. Edgar Hoover: The Man and His Secrets (New York: W.W. Norton and Company, 1991), 112-113. Such concerns may well have been prescient and to a degree that would have hardly surprised many of us today. Throughout its history, the Secret Service has been used by the nation’s presidents in ways both political and private in nature. During the Nixon presidency, for example, evidence of the Service’s spying on the President's political rivals and its surveillance of the President's brother Don moved the New York Times to comment regarding the existence of "troubling signs that the agency had come to put service to [Nixon's] person ahead of any tradition of public service." Anthony Summers, The Arrogance of Power: the Secret World of Richard Nixon (New York: Viking, 2000), 247. 79 Gatewood, Theodore Roosevelt and the Art of Controversy, 265.
184
prohibitions of the Posse Comitatus Act of 1878,80 to operate under the direction
of the United States marshals and the Pinkerton operatives hired by them to identify and apprehend the strike’s leaders.81
In June, 1908, Bonaparte, professing that he had no other alternative,
issued instructions to his chief examiner Stanley W. Finch to proceed quietly with
the organization of a detective force (the Attorney General was not yet prepared to assign it the status of a Bureau) and to enroll nine Secret Service agents who had been released from the Service specifically for that reason. Finch was assisted in this task by the United States Attorney for New York Henry Stimson, who had been a highly vocal proponent of the Attorney General's proposal.
Together they assembled what Bonaparte would later describe as a
"comprehensive investigative force" despite the limited role to which it would subsequently be assigned within the Department.82 The following month,
Roosevelt issued an order ratifying his Attorney General's decision, a step which,
in combination with Bonaparte’s establishment the following year of a separate
division within his Department for criminal prosecutions, signaled the growing
specialization and increased importance of criminal law enforcement among the
Department’s responsibilities.83
Despite the anxiety that had been caused by the Attorney General’s
request for congressional recognition of his Department’s investigative needs,
the real issue had always involved the President’s discretionary power, that is,
80 20 Stat. L. 122. 81 Kaiser, “Origins of Secret Service Protection”, 105; Jensen, Army Surveillance In America, 45. 82 Annual Report of the Attorney General of the United States For the Year 1909, 8-10. 83 "Budget, Institutions, and Change: Criminal Justice Policy In America," American Journal of Political Science 24, no. 3 (August, 1980), 423.
185
whether the President could convince his critics that he was sufficiently
committed to preventing “a disproportionate partisan influence on the Justice
Department’s decisions to prosecute.”84 From Roosevelt’s perspective, the power to determine what matters would be open to investigation were, in view of
the very close relationship between the law and his domestic policy, entirely
within his discretion as chief executive, if only because the responsibility for ensuring that the laws were “faithfully executed” fell upon his shoulders. It is
noteworthy that it had been the President, and not the House Appropriations
Committee, who first linked this issue with the government’s ability to enforce the law. For Roosevelt understood, perhaps more clearly than most, that the manner in which a president enforced the law would affect his ability to influence and to implement national policy. If, however, Roosevelt had been determined to keep what he perceived as partisan politics out of the administration of justice,
Congress had remained just as insistent upon keeping it free of presidential politics. During the course of its hearings, the Committee had been shocked by the testimony of several government functionaries, including the chief of the
Secret Service, who, in speaking in favor of establishing a central directorate through which the investigative needs of all agencies of the federal government could be channeled, seemed so totally oblivious to the Committee members’ concerns – concerns that went beyond mere pique or any fear of a dictatorship.
For the witnesses appearing before the Committee, the only question before
Congress was one concerning the best approach to achieving the highest degree
84 John M. Orman and Dorothy Rudoni, “Exercise of the President’s Discretionary Power In Criminal Justice Policy,” Presidential Studies Quarterly 9, no. 4 (1979), 421.
186
of administrative efficiency.85 But for the Committee, the central issue was hardly
one of efficiency, but rather a question concerning the limits of presidential
power.
It becomes clear, then, that in proposing to limit the scope of the Secret
Service's investigative activities, the Committee was actually attempting to
achieve a balance between what it saw as the legitimate needs of government
administration and the necessity of ensuring effective congressional oversight.
For a century or more, Congress had exercised a considerable influence over the executive branch through its control of both the expenditures of government funds and the process of allocating, among the existing executive departments,
new functions or responsibilities. Whenever the matter involved the federal
government’s policing or enforcement responsibilities, however, where power
could be exercised with the force of law, greater caution had always been used in
deciding where, within the structure of government, such authority would reside.
That decision had always been securely tied to the purpose for which Congress’
grant of authority had been sought. Bonaparte’s request, first made at a time
when the intentions of the President were suspect, revealed little understanding
of the Committee’s dilemma: it had not been couched in terms that failed to
adequately describe the specific functions the investigators were expected to
perform in order to make granting the authority requested on the Department’s
behalf advisable. By the time Bonaparte made his last appearance before the
House Appropriations Committee, he had only just begun to understand that in
85 Wilkie, American Secret Service Agent, 67-68; Overstreet and Overstreet, The FBI in Our Open Society, 29.
187
order to obtain acceptance of the organizational changes the President had
authorized, he would need to convince the Committee that measures were in
place to assuage their fears concerning the durability of the Department’s control
of its investigative personnel. In his testimony before the committee, the Attorney
General had addressed this point squarely, explaining that the detective force
would remain small in number and, therefore, subject to more intensive
supervision. More importantly, he assured the Committee, it would be strictly
limited in the kinds of violations, principally antitrust and interstate commerce law,
that it would be authorized to investigate. Bonaparte’s vision of a carefully picked
and highly disciplined investigative unit, subject to his personal direction and
accountable to the Department, finally won the approval he had repeatedly
sought throughout his term in office.86 The following year, Congress, having heard from Bonaparte’s successor, lifted the restrictions it had imposed on the
use of the Department's investigators and, by increasing their funding level "for
such a other investigations regarding official matters under the control of the
Department of Justice as may be directed by the Attorney General," provided
federal law enforcement with its very first, relatively non-specific law enforcement
mandate.87
86 Overstreet and Overstreet, The FBI In Our Open Society, 33. 87 Sherrill, The Selling of the FBI, 51-82.
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Chapter 5
STRETCHING THE MEANING OF MUTUAL ASSISTANCE
Law in action is administration – and it is the work of the bureaucrats from whom and from whose works Congressmen instinctively dissociate [sic] themselves. Policy in practice thus is never the responsibility of Congress. . . . . Yet the penalty for the failure to accept responsibility for the test of legislation in administration is blindness to the possible lessons of experience. It may be that if government is ever to learn from its experience, the learning process will in large measure depend on the functioning of the bureaucracy. Norton E. Long 1
In the first decades of the twentieth century, the political dimensions of
crime underwent a rapid and dramatic change. Crime and criminality, long
considered a local preoccupation and, therefore, properly the concern of local institutions, began to assume a more expansive and ominous character with significant implications for federal crime control policy. That the nature of crime
was changing, becoming more organized in its activity and commercial in its
orientation, was widely recognized, but so, too, was the social and political
context within which crime was evolving. The unsettling effects of the nation’s
continuing transition from a predominantly rural to an urban society, with a
growing and increasingly diverse population, provided traditional
conceptualizations of criminal behavior with a new and more expansive definition.
Even as the more progressive tenor of early twentieth century politics
encouraged greater innovation in the field of criminal justice, fears regarding the
larger implications of urban growth and questions concerning the behavior of the
cities’ immigrant populations, their troubling indifference to the essentially
1 Norton E. Long, “Bureaucracy and Constitutionalism.” The American Political Science Review 46(3) (September 1952): 808-818.
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abstract appeal of American political ideals, transformed what were otherwise
local crime suppression issues into broader questions of national policy. That, in turn, provided the federal government with its first real opportunity to assume a
significant, though indirect, control over crime. The more rapid influx of
immigrants that had begun in the latter part of the nineteenth century and
continued virtually unabated thereafter transformed the face and character of the
nation’s cities. The appearance of ethnic enclaves, vivid reminders of the
presence of an alien culture with its own language and a social structure unlike
any found in the world beyond the neighborhood it occupied, did much to
exacerbate the social tensions that marked urban life.2 From the perspective of native born Americans, the condition of life within these enclaves - the unemployment, overcrowding, and poverty they observed there - encouraged irresponsible, even anti-social, behavior,3 which, on a larger scale, directly
threatened important social interests; interests that were critical to the
preservation of its most important social and political values, its moral
foundations, and, ultimately, the survival of its democratic traditions and
institutions.4 There was, however, little understanding and no agreement as to
why and how these conditions had evolved, a factor that made their amelioration
2 David J. Goldberg, Discontented America: The United States In the 1920s (Baltimore: The Johns Hopkins University Press, 1999), 141-143. 3 In 1931, the National Commission On Law Observance and Enforcement, recognizing the complexity of the problem, concluded that “the very effort of . . . minority group[s] to acquire knowledge of the new institutions often seems a disposition to disregard them and brings a judgment of lawlessness upon mere eagerness and aspiration. On the other hand, it is, of course, true that such minority groups, feeling the handicap of their position, are under a strong temptation to evade and disregard what they cannot understand, to treat as discrimination the disadvantage to which they are inevitably subjected, and to equalize their condition by disregarding restraints which the majority has come to recognize, by tradition, as essential to the social order.” National Commission On Law Observance and Enforcement, Report On Crime and the Foreign Born (Washington, D.C.: Government Printing Office, 1931), 2.
190
all the more challenging and politically controversial. The public’s attitude toward
the immigrant tended to range from the sympathetic to outright hostility, but as
the arrival of successive waves of migrants, many from southern and eastern
Europe, continued, questions arose as to whether the country could absorb their
increasing numbers without risking the polarization of society or the loss of its
essential and uniquely democratic character.5
Compounding the frustration that characterized relations between the
native-born and the immigrant was the newcomers’ resistance to the assimilative
pressures to which they were increasingly exposed. The reluctance of so many
of the newer arrivals to submit to these expectations was interpreted as further
evidence of a general erosion of the nation’s cohesiveness and, by extension, of
a growing threat to the public welfare. The uncertainty that resulted fed a
growing sense of impending loss among the native-born, the growing likelihood
of privations, both personal and communal, that threatened to diminish the hopes
of so many. The very success of two decades or more of progress toward the
improvement of the whole spectrum of contemporary life in the face of vast
economic change and “unremitting urban growth” seemed to lie in the balance.6
Amidst such uncertainty and tension, however, no political solution seemed readily forthcoming. Neither of the major political parties was especially eager to become involved in matters around which no significant body of opinion had yet coalesced. The absence of a consensus was equally discouraging to those who
4 James H. Timberlake, Prohibition and the Progressive Movement, 1900-1920 (Cambridge, MA: Harvard University Press, 1963), 100-102. 5 John Higham, Send These To Me: Immigrants In Urban America (Baltimore, MD: The Johns Hopkins University Press, 1975 [1984]), 37. 6 Paul Boyer, Urban Masses and Moral Order In America, 1820-1920 (Cambridge, MA: Harvard University Press, 1978), 190-193.
191
filled the ranks of the progressive reform movements most directly concerned
with the plight of the immigrant, but found themselves disadvantaged by their
inability to bridge the gulf that separated their two communities. Given such
apprehensions, many Americans, whatever their political orientation, gradually
came to believe that the social, economic, and particularly the ethnic divisions
that were the sources of tension in their cities, if left unchecked, would likely
result in the kinds of political crises and social conflict that could undermine
confidence in their political institutions and values.7
The forces that were responsible for the enactment of national measures against prostitution and the unauthorized distribution of narcotics were largely the product of those anxieties that shaped and directed federal crime control policy in the early twentieth century. The growing intensity, for one, of the nation’s involvement with world affairs, initially the result of its economic and industrial growth, but increasingly the consequence of its expansion to territories beyond its continental borders, contributed to public concerns regarding the degree to which the nation could control its own borders against the rising “foreign menace of immigration.”8 Beset by the social tensions and the irrepressible influences of
their new urban and increasingly diverse culture, Americans reacted emotionally
and with a moral fervor that not only reinforced what the historian Eric Foner
described as an “impulse toward social cohesiveness and homogeneity,”9 but
7 Egal Feldman, "Prostitution, the Alien Woman and the Progressive Imagination, 1910-1915," Law and History Review 19, no. 2 (Summer 1967), 193, 194; Michael Willrich, "The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930," Law and History Review 16, no. 1 (Spring 1998) 16 (1): 97. 8 Erika Lee, “Enforcing the Borders: Chinese Exclusion along the U.S. Borders With Canada and Mexico, 1882-1924,” The Journal of American History 89, no. 1 (June 2002), 72-73; Higham, Send These To Me, 39. 9 Eric Foner, The Story of American Freedom (New York: W.W. Norton & Company, 1998), 161.
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also hardened their suspicions regarding the foreign origins of the more
“recognizable and reprehensible symbols” of their new and unsettling
environment. By 1910, prostitution had become, much as David Langum noted,
the "flash point for all three of the social tensions, immigration, urbanization, and
the sexuality of women" that were at the root of the nation’s growing unease.10
The target of so many different anti-vice organizations, some privately financed, and eradication campaigns, prostitution soon became regarded as something more than a mere nuisance, condemned but tolerated. Public sentiment, whipped into a frenzy by a barrage of journalistic revelations and literary works, came to see in its practice not only such evils as the degradation of women and the integrity of its public officials, but, more ominously, the hidden hand of international conspiracy as well. The perception of prostitution as a far more serious form of deviant behavior than was previously regarded with potentially more harmful consequences not only for the nation’s moral values, but also its national identity and the continuing vitality of its sovereign power, as measured by its control over immigration, invited more vigorous federal intervention and made, in the process, questions respecting social control the primary focus of federal policing for years thereafter.
Immigrants, White Slavery, and Federal Jurisdiction
The federal government's involvement with prostitution as a policy concern first arose in connection with the issue of immigration control. Though intrinsically a symbol of sovereign power, until the early 1870s, most of the measures taken in this country to ensure the orderly flow of immigrants actually
10 David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago: The
193
originated with the city ports and states that were most affected. In 1876,
however, the source of funds that supported the administration of these
programs through which such programs, a tax levied upon each entrant, was invalidated by the Supreme Court, which suggested that this kind of regulation was a more appropriate subject for national legislation.11 Despite this
suggestion, Congress, likely fearing the effect upon local patronage prerogatives,
was reluctant to take operational control of the screening processes in place and
did not act on the matter until 1882, when the Department of Treasury was
authorized to engage, by contractual arrangement, the services of state officials
to inspect for and to exclude undesirable aliens. Having co-opted the systems
that were established to address the local implications of the immigrant traffic,
Congress added new responsibilities relating to a broader range of domestic
concerns. Legislation excluding Chinese migrants and contract workers, for
example, soon followed as did other measures forcing migrants who had been
discovered entering the country illegally to return to their countries of origin.12
In 1889, the contractual arrangements upon which the nation's immigration law depended for their enforcement were subjected to a comprehensive review by a joint committee of Congress. Rising nativist sentiment and the inability of local officials to more efficiently screen the larger numbers of arriving immigrants forced Congress to jettison its system of contractual arrangements in favor of a permanent and federally staffed role in
University of Chicago Press, 1994), 17. 11 Henderson vs. Mayor of the City of New York, 92 U. S. 259. 12 Chinese Exclusion Act of the 1882, 22 Stat. L. 58; Alien Contract Labor Law of 1885, 23 Stat. L. 332; Act of October 19th, 1888, 25 Stat. L. 565.
194
matters of immigration.13 Congress' experimentation with a combined state and
federal program capable of reconciling and administering to separate local and
federal interests in the implementation of immigration policy was simply no longer
tenable. Much of the fault law with the Immigration Act of 1882, which, in
defining, for the first time, Illegal immigration as a criminal offense, placed the
burden of enforcement entirely upon the states, a responsibility that became, in
the absence of uniform procedures and proper funding, too large and onerous a burden for the state boards and commissions appointed to the task.14
Henceforth, the control of immigration would be an exclusively federal matter.
The Immigration Act of 1891 authorized the creation of a new Bureau of
Immigration within the Department of Treasury and provided for border inspection stations at the principal ports of entry along the nation's seacoasts and its borders with Canada and Mexico.15 It required steamship companies to return any passenger denied admission to his or her port of embarkation, prohibited the recruitment of foreign labor, and provided for a deportation process.16 Between
1891 and 1900, however, the demand for immigrant labor continued to grow as
the nation's economy expanded and larger numbers of unskilled workers were
needed for its many industries and factories. As a consequence, the duties
assigned to the Bureau of Immigration soon included the administration of all
13 John Higham, Strangers In the Land: Patterns of American Nativism, 1860-1920 (New York: Atheneum, 1985), 43-45; Darrell H. Smith and H. Guy Herring, The Bureau of Immigration: Its History, Activities and Organization (Baltimore, Maryland: The Johns Hopkins Press, 1924), 6-7. 14 Sharon D. Masanz, Congressional Research Service, Library of Congress, History of the Immigration and Naturalization Service: a report prepared at the request of Senator Edward M. Kennedy, chairman, Committee on the Judiciary, United States Senate, for the use of the Select Commission on Immigration and Refugee Policy (Washington: U.S. Government Printing Office, 1980), 8-9. 15 Smith and Herring, The Bureau of Immigration, 7. 16 The Legislative, Executive, and Judicial Act of March 2, 1895, 28 Stat. L. 764; The Sundry Civil Act of June 6, 1900, 31 Stat. L. 588.
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contract labor laws and the enforcement of the Chinese exclusion laws.17 For the
Bureau of Immigration, however, this expansion of their area of responsibility failed to eliminate the operational difficulties with which it had barely been coping prior to receiving this new assignment. Since the Bureau continued to lack the means to adequately supervise the nation's borders, it was forced to share this burden with the larger and more respected Bureau of Customs. But in 1903, the
Bureau’s association with foreign labor would secure its transfer to the newly established Department of Commerce and Labor, a transfer that would, in time, weaken its influence in the enforcement of statutes directed against the violation of the nation’s immigration policies.
Between 1894 and 1910, a quantum leap in the numbers of arriving immigrants, along with significant changes in their ethnic make up, contributed to a resurgent anti-foreign sentiment and inspired, through the imposition of increasingly restrictive measures, a renewed effort to choke off the flow of those determined to be unsuitable for admission. Paupers, the mentally incompetent, the "so-called unassimilable races," and those believed to be morally suspect were all denied entry under the new rules. This new strain of nativism would grow increasingly virulent, finding expression in the treatment meted out to immigrants in connection with a range of public concerns. In New York, which then possessed one of the greatest concentrations of the foreign-born in the country, native-born citizens, fearing that the hordes of arriving immigrants included anarchists and others disposed toward violence and crime, overcame their reservations regarding the regulation of firearms and accepted the
17 Smith and Herring, The Bureau of Immigration, 19.
196
imposition of strict controls over the ownership and possession of handguns.18
But prostitution remained a more important concern in response to the increased number of immigrants and attracted far greater attention from those were worried about the administration and policing of their communities. By 1900, prostitution, which had once flourished openly in most American cities, had largely been confined to segregated districts where this activity, increasingly organized around brothels, could be more easily monitored and policed. This policy of tolerance and accommodation, however, did not escape the attention of a growing body of citizens bent on suppressing the trade and demanding a more vigorous enforcement of the laws against it. Prostitution became a lightning rod for a host of public concerns that not only reflected the growing moral and religious antipathies to prostitution, but also other grounds - social, hygienic, and civic - for public disapproval.19
The anti-vice organizations and private citizens who were involved in the
early campaigns against prostitution were motivated for a variety of reasons, but
among the most common was the evidence they discovered respecting the
complicity of the police and local political officials in the arrangements that
provided the protective umbrella under which the prostitute's trade thrived. Their
efforts to sever the connection between the police and the brothel keepers and
others who sought their protection from arrest focused upon police corruption,
the payment of graft in exchange for cooperation and the use of selective
18 Robert J. Cottrol and Raymond T. Diamond, “Public Safety and the Right to Bear Arms,” Edited by David J. Bodenhamer and James W. Ely, Jr., The Bill of Rights In Modern America After 200 Years (Bloomington: Indiana University Press, 1993), 81; Lee Kennett and James LaVerne Anderson, The Gun In America: The Origins of a National Dilemma (Westport, CN: Greenwood Press, 1975), 167. 19 Smith and Herring, The Bureau of Immigration, 19.
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enforcement to induce such payments, all practices that became widely
associated with the establishment and police advocacy of specially designated
“red light” districts that served as much to control the trade as to contain it. As a
policy of convenience, the segregation of prostitution in vice districts proved
exceptionally vulnerable to the very kinds of controversy it was intended to avoid
and reflected poorly upon urban policing generally.20 With the police now
discredited as a potential solution to the problem, the initiative for the
suppression of vice passed into the hands of private parties and groups of
concerned citizens where it sometimes served other, sometimes unrelated,
interests. Investigations of the moral conditions of the nation's cities presented especially rewarding opportunities for those interested in effecting political change or reform. In the city of New York, for example, allegations concerning the corrupt rule of Tammany Hall, the city's powerful political machine, became a central feature of the elections of 1901. Tammany's opponents, relying upon the findings of a highly partisan inquiry they had sponsored into the city's "vice economy," accused Tammany's organization of profiting directly from prostitution.
The charges were extensively aired by the city's press and proved successful, if only temporarily, in undermining the machine's traditional support among the city's poorer residents and immigrant population.21
In 1902, at the invitation of the French government, an international
congress was convened in Paris to address common concerns raised by a
20 Daniel Czitrom, "Underworlds and Underdogs: Big Bill Sullivan and Metropolitan Politics In New York, 1889-1913," The Journal of American History (September, 1991) 536-558, 548-500. 21 Langum, Crossing Over, 21, 25; Morton Keller, Regulating a New Society: Public Policy and Social Change In America, 1900-1933 (Cambridge, Massachusetts: Harvard University Press, 1994), 117-119; Samuel Walker, A Critical History of Police Reform: the Emergence of Professionalism (Lexington, Mass.: Lexington Books, 1977), 100-101.
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growing international traffic in women and girls for immoral purposes. The
conference was the culmination of a years-long effort on the part of private organizations throughout Western Europe to prevent the recruitment of young women for service in the continent's houses of prostitution. Over the next two years, the terms of an international agreement were hammered out and subsequently ratified by the representatives of the twelve participating nations.
The treaty's enforcement provisions, however, which placed responsibility directly upon the government of each subscribing nation to provide comprehensive
surveillance of all ports of entry and more intensive internal policing, made it
impractical for the United States, where no national police force existed, to
guarantee compliance if it were ever to become a treaty signatory. Disappointed,
but undeterred, the Roosevelt administration pressured the Bureau of
Immigration to step up its campaign against the importation of prostitutes and to increase its vigilance throughout its processing facilities.22 This attempt to realign
the Bureau's operational priorities, however, in the absence of a well-coordinated enforcement mechanism, produced little in the way of improved results, a situation that remained virtually unchanged until 1907, when the domestic political climate surrounding the issue of prostitution suddenly changed.
In the early months of that year, McClure's Magazine, a journal with a nation-wide circulation, published a series of articles exposing the interlocking relations between Chicago's brothel-keepers and the city's political establishment. This expose' and others which followed incited a public outcry that spread from city to city, spurring the citizenry of each to take immediate and
22 Walker, A Critical History, 98.
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direct action against those who benefited from the prostitute’s trade. Overseeing
these efforts were a number of local investigative committees and vice commissions that were formed to assess conditions in their respective cities and to recommend and pursue remedial action.23 Somewhere between their efforts
to mobilize public opinion and a growing disenchantment with conditions that
were prevalent in those city districts where vice tended to be more apparent, a conviction emerged that local prostitution was tied directly to the immigrant populations now crowding the least desirable sections of the nation's cities.
Thrown on the defensive, the Bureau of Immigration, while lacking solid evidence of the existence of any international criminal enterprises involved in the trafficking of women for the purpose of prostitution, felt compelled, nonetheless, to acknowledge the truth of these allegations even as it attempted to minimize the severity of the problem by touting the success of the Europeans in stemming the flow. Unimpressed with the Bureau’s assurances, Congress moved rapidly to extend federal jurisdiction over the arriving immigrants and to determine, by means of a specially assembled committee, to what degree, if any, the nation's immigration policies were failing to alleviate the alarming condition of its cities.24
What resulted from Congress’ efforts was the passage of the Immigration
Act of 1907,25 which consolidated much of the previously enacted immigration
legislation and made it expressly illegal for anyone to maintain or to harbor an
alien prostitute at anytime during the three years immediately following her arrival
on American shores. The act, which greatly expanded the authority of the
23 Francesco Cordasco and Thomas M. Pitkin, The White Slave Trade and the Immigrants: A Chapter In American Social History (Detroit, MI: Blaine Ethridge, 1981), 5, 19. 24 Ibid., 18-21, 27. 25 34 Stat. L. 1221.
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Bureau of Immigration, extended, for the very first time, the reach of the Bureau’s
border enforcement program well into the nation's interior, and implicitly
sanctioned the use of raids and other law enforcement methods to apprehend
suspects. Foreign women suspected of being prostitutes were to be deported.26
The following year, at the urging of Secretary of State Elihu Root, President
Roosevelt, noting that the treaty formed in Paris in 1904 had already been approved by the Senate, proclaimed it to be in full force and effect.27 The
President remained convinced that the cooperation he anticipated receiving from the states would be sufficient to meet the essential enforcement prerequisites upon which the treaty was predicated. Now committed to meeting the specific enforcement provisions of the treaty, Congress proceeded to designate the
Commissioner-General of Immigration as the official responsible for coordinating the federal government's contribution to the suppression of the international trafficking in women. Congress, however, took no steps to increase the Bureau’s appropriations in order to better accommodate its new responsibilities or to authorize any expansion of its staff, a situation that placed the burden of enforcement under the supervision of the United States Attorneys for the affected
districts. From Congress’ perspective, the involvement of the U.S. Attorneys
represented a perfectly logical step in fulfilling the nation’s obligations under the
treaty and in pursuing a vigorous enforcement of the immigration act. The U.S.
Attorneys were already in place, were widely recognized as the federal government’s primary enforcement arm, and were far better prepared, given their
26 Feldman, "Prostitution, the Alien Woman and the Progressive Imagination, 1910-1915", 195; Boyer, Urban Masses and Moral Order In America, 1820-1920, 195. 27 Erika Lee, “Enforcing the Borders: Chinese Exclusion along the U.S. Borders with Canada and Mexico, 1882-1924,” The Journal of American History 89, no. 1 (June 2002) 89(1): 54-86, 82-83.
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resources and local connections, to take legal action against the brothel operators and others believed responsible for the importation of prostitutes.28
Congress’ expectations regarding the federal prosecutors’ involvement was, in effect, entirely consistent not only with the established, though expanded, parameters of federal jurisdiction, but, more importantly, with the existing structure within which the enforcement of federal criminal law was actually accomplished.
Within months, however, serious problems began to surface, directly challenging the effectiveness of the federal government's strategy and the assumptions upon which its policy toward commercial prostitution rested. Among the problems Congress, and particularly its committees on immigration, had not anticipated were those that were increasingly undermining the Bureau’s attempts to enforce the Immigration Act and which, by 1909, were being regularly reported by a much alarmed Commissioner-General. Without sufficient funds or staff, the
Bureau had been compelled to rely upon its relations with each of the U.S.
Attorneys whose cooperation it had sought. These, in turn, had been reluctant reorder their priorities to accommodate the Bureau’s demands or to tap their own operating funds without some reassurance of being compensated, as was the custom, for their expenditures. In the competition for access to the U.S.
Attorney’s time and limited resources, the Bureau simply lacked the standing or influence that the other federal agencies enjoyed, a disadvantage rooted in its inability to field an effective group of inspectors or examiners beyond those primarily border areas already covered by the Bureau. Where the Bureau’s
28 Langum, Crossing Over, 23.
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operations were extended, its agents, much as did the few U.S. Attorneys who
were willing to become involved, found themselves stymied by the political
protection afforded vice purveyors and brothel keepers in exchange for their
financial support and influence or by the overly demanding and inconstant
support of local reform movements.29
Complicating matters further was the fact that the Bureau's efforts to
strengthen ties with its European counterparts were producing few positive
results and resulting, instead, in the appearance of additional sources of tension
between them. While the European sponsors of the International Congress had
been motivated by the concerns they had shared regarding the recruitment of women into the vice trade, the real point of their involvement had been prevention, the adoption of common measures by which the abduction or seduction of innocent women and girls into a life of prostitution could be discouraged or, when necessary, punished. American policy, on the other hand, reflected a very different set of assumptions and objectives. In the United States, where the very act of exchanging sexual favors for money was subject to moral
condemnation and, increasingly, criminal penalty, trafficking in prostitutes was
perceived in an entirely different light. The Immigration Act had been designed,
in part, to supplement the efforts of local communities nationwide to suppress or
eliminate prostitution altogether. The restrictions imposed under the immigration
laws, the Commissioner-General insisted, applied not merely to women who
"have been seduced into a life of prostitution," the principal concern of the
European signatories to the treaty, but "to all girls and women of [a] sexually
29 Cordasco and Pitkin, The White Slave Trade, 28.
203 immoral class" as well.30 In that respect, the government's policy of restriction, as it applied to the white slave trade, was entirely consistent with and served to reinforce the uniquely American view regarding the foreign origins of the nation's experience with prostitution. Neither the Bureau, nor its departmental overseers were in a position to accept the display of tolerance toward prostitution reflected in the policies of their European partners. The lynchpins of American national policy continued to be found in the vigorous enforcement of the Immigration Act and strict adherence to the policy of selective admission. Then, rather unexpectedly, the United States Supreme Court overturned a provision of the Act that was critically important to its enforcement.31 The Act, the Supreme Court found, not only failed to require that a defendant have actual knowledge of a woman's alien status, but also constituted an unacceptable abridgment of the police powers reserved to the states and was, therefore, constitutionally invalid.
William Howard Taft's selection of George W. Wickersham, as
Bonaparte's successor signaled important changes, if less so in the Department's priorities, than in its organizational structure. Prior to his appointment,
Wickersham had been a partner in one of the nation's premier law firms, Strong and Cadwalader, where he had acquired a reputation as an adviser to large industrial, financial, and transportation companies and as an expert in civil litigation. Like his predecessor, Wickersham was keenly aware of the law’s potential as a policy tool, but, more like the president who had appointed him, he was predisposed toward a more deliberate, systematic, and procedurally-driven
30 Annual Report of the Commissioner-General of Immigration, 1909 (Washington, D.C.: Government Printing Office, 1909), 116-117. 31 U.S. v. Keller (1909) 213 U.S. 138.
204
approach to the workings of government and the enforcement of federal law. A great deal has been read into Wickersham’s reconstitution of the Justice
Department’s investigative force,32 but the changes represented only a small step
toward the establishment of a permanent management structure within the
Department as a whole: another step in an evolutionary process that would
eventually see the Department of Justice emerge as a powerful government
bureaucracy. Within weeks of his arrival in Washington, Wickersham set out to
reorganize his Department into functionally distinct parts with more clearly
defined areas of responsibility. Certain that such re-organizational steps were
necessary both to support the more aggressive litigation strategies he was
anticipating and to provide him with greater opportunities to supervise the
activities of his various divisions, Wickersham undertook to improve the quality of
the Department’s work force by instituting a merit-based recruitment and
promotion system.33 But his efforts to depoliticize and professionalize the
Department, to more effectively manage and coordinate its continuing growth
and far-flung operations, were made more complicated, ironically, by the
Department’s own growing discretionary authority and by developments –
political crises, congressional concerns, and judicial pronouncements – that
contributed to the pressures under which the Department was functioning.
The process by which the Department was being transformed into a more
autonomous government agency had actually begun well before Wickersham’s
32 Willard B. Gatewood, Jr., Theodore Roosevelt and the Art of Controversy: Episodes of the White House Years (Baton Rouge: Louisiana State University Press, 1970), 283; Sanford J. Ungar, FBI (Boston, MA: Little, Brown & Company, 1975), 40; Max Lowenthal, The Federal Bureau of Investigation (Westport, CN: Greenwood Press, Publishers, 1950), 1243.
205 arrival and had been accelerated, to a large extent, during the presidency of
Theodore Roosevelt. Roosevelt’s efforts to strengthen the chief executive’s authority brought little order or much needed coherence to the diverse functions performed by each of the departments represented in his cabinet. Aside from his devotion to the expansion of the federal government’s administrative capacity,
Roosevelt’s principal contribution to the development of a federal bureaucracy was his willingness to place his office between congress and the executive departments and, by doing so, providing them with the space they needed to develop the discretionary authority they would require to more effectively implement federal policy.34 Once confined to a fairly limited set of directives, setting forth the parameters of the action to be taken, the executive departments began to move into a more modern realm where the directives had become policy goals or mandates and where their implementation relied more heavily upon the initiative, judgment, and organizational capacities of the agencies involved. Unlike the Treasury Department, which could claim wide recognition of and considerable expertise in certain significant areas of responsibility, the
Department of Justice had yet to be identified with any major government policy, other than its anti-trust activity, which could potentially affect the lives of ordinary citizens. That would begin to change, but in a manner that would greatly tax his
Department’s resources, while simultaneously raising questions, both within and outside of government, as to whether federal intervention, in the form it had taken, was even appropriate.
33 Homer S. Cummings and Carl McFarland. Federal Justice (New York: The Macmillan Company, 1937), 380; William F. Swindler, Court and Constitution in the Twentieth Century: The Old legality, 1889-1932 (New York: Bobbs-Merrill Company, Inc., 1996), 136-137.
206
The agitation that led to the enactment of the White Slave Traffic Act in
1910 offers a prime example of the peculiar challenges with which the
Department of Justice was confronted in the earliest stages of its transformation into an important government bureaucracy. In a political system that was heavily decentralized and where there were parties who were able to exercise considerable influence over the formulation of national policy, the Department had increasingly found itself caught between the constitutional limits binding it and the political controversies that resulted in its commitment to new and difficult functions. In each case, the constitutional issues with which the Department grappled more often than not concerned problems associated with the expansion of its criminal jurisdiction: questions that centered upon the reach of the
“interstate commerce” clause and its use by Congress to delegate to the president the power to act with the force of law. Contributing to the Attorney
General’s dilemma were the managerial problems that resulted from the continuing expansion of the Department’s criminal jurisdiction and the questions that were being raised, both in and outside of government circles, regarding the proper role of the national government in its enforcement of the law, questions that served as a constraint upon the growth of both the Department’s discretionary authority and the extension of federal jurisdiction.
By 1910, Wickersham’s second year as Attorney General, public sentiment against prostitution and the urban vice districts to which it had gravitated, frequently with the approval of city officials and the police, had begun to intensify. While no single group emerged to dominate the anti-prostitution
34 Stephen Skowroney, Building A New American State (New York: Cambridge University Press,
207
movement, locally organized campaigns against the prostitute’s trade spread
rapidly and drew to their ranks a broad range of private and business interests.
Aligned with those intent upon suppressing prostitution were other people who feared the spread of crime, disease, and immorality, and still others who were increasingly conscious of the ethnic, religious, and racial differences that were, they believed, undermining traditional American values. The attention encouraged experimentation with new and innovative approaches including the introduction of ordinances targeting open solicitation and the maintenance of brothels. The sheer number of these campaigns and the support they received in their efforts to criminalize prostitution converted ordinary concerns regarding the “moral” health of the nation’s communities into a politically charged issue. In
1909, a New York City grand jury embarked upon an investigation, financially supported and guided by its foreman John D. Rockefeller, Jr., that figured prominently, though unintentionally, in associating prostitution with the trafficking of women. Contrary to the grand jury’s findings, that the vice trade was neither systemic, nor especially well organized, the connection between commercial vice and the presence of alien women remained tightly woven in the public’s imagination.35 The preliminary reports of the Immigration Commission,
established by Congress in 1907 and popularly known by the name of its
chairman, Senator William P. Dillingham of Vermont, did nothing to dispel the
1982), 16. 35 Judith Sealander, Private Wealth and Public Life: Foundation Philanthropy and the Reshaping of American Social Policy From the Progressive Era to the New Deal (Baltimore, MD; The Johns Hopkins University Press, 1997), 164-167; Feldman, "Prostitution, the Alien Woman and the Progressive Imagination,” 196.
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public’s image of the prostitute as a victim of forced sexual slavery.36 While conceding that it had found no evidence to show that immigration had contributed to the increase in crime overall, the Commission suggested, nonetheless, that the immigrants had altered the character of crime, as it included a larger number of offenses “incident to city life,” and making it more violence prone.37
The growing uproar over forced prostitution, now an issue that had
become intertwined with widely held fears regarding an unchecked flow of
immigrants, could not be ignored indefinitely. The House Committee on
Immigration and Naturalization arranged for hearings to be conducted on the
matter. The bill that emerged, essentially an immigration bill, focused on
eliminating the constitutional weakness of the 1907 immigration act, specifically,
the provision that allowed for the deportation of an alien at any time within three
years following her arrival and to which the Supreme Court had objected in U.S.
v. Keller.38 The operative language of the proposed statute was directed toward
foreign commerce and against the importation of foreign born women for
“immoral purposes,” a reflection of both the Committee’s area of expertise and its reluctance to extend federal police power beyond what was believed constitutionally acceptable. However, shortly after this bill was presented to the
House of Representatives for its consideration, the House Committee on
Interstate and Foreign Commerce introduced its own version of anti-white slavery
legislation. Its proposed bill proved to be remarkably similar to the bill drafted by
36 Mark T. Connelly, The Response to Prostitution In the Progressive Era (Chapel Hill: University of North Carolina Press, 1980), 51-57. 37 United States Congress, Senate, Committee On Immigration, Reports of the Immigration Commission, Immigration and Crime, 61st Congress, 3rd Sess. (December 5, 1910), Senate Document No. 750 (Washington, D.C.: Government Printing Office, 1911), 2. 38 Cordasco and Pitkin, The White Slave Trade, 33.
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the Committee on Immigration, but placed greater emphasis upon federal
jurisdiction over interstate commerce than upon the government’s responsibility
for safeguarding the nation’s border.39 This distinction would prove to be a
critical one. The Committee on Interstate Commerce’s bill, which was severely
criticized by the sponsors of the competing immigration bill, among them its
author William Bennett of New York, as an unacceptable usurpation of state
police powers.
The debate that followed provided the supporters of the Commerce
Committee’s bill, including its chief sponsor, House Republican James R. Mann
of Illinois, with opportunities to play upon popular fears and misconceptions in
dramatizing the suspected nexus between the international origins of the white
slave trade and domestic concerns regarding prostitution, crime, and corruption.
While acknowledging that portions of the bill appeared “stringent and drastic,” the
Commerce Committee’s supporters argued that the crisis with which the nation
was confronted simply could not be resolved without employing such measures
as the bill authorized.40 Congressman Mann, after whom the bill, when enacted, was named, offered assurances of a different, but equally persuasive kind: “the punishment of the practice of prostitution or the keeping of houses of ill fame, or other immoral places in the several states,” he insisted, would remain “matters wholly within the powers of the states.”41 From a federal perspective, Mann and his supporters explained, what was both distinctive and significant about the statute was the fact that it specifically addressed the interstate character of the
39 Congressional Record, 61st Cong., 2nd Sess. (January 26, 1910), 1030-1041. 40 Congressional Record, 61st Cong., 2nd Sess (January 12, 1910), 547-548. 41 Marlene D. Beckman, “The White Slave Traffic Act: Historical Impact of a Federal Crime Policy On Women.” Women & Politics (February 1984) 4(3): 85-101, 100.
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crime against which it was directed, a venue that lay beyond the reach of the
states. Such arguments would ultimately prevail, in part because they were more
closely attuned to the feelings of an aroused public and because they tended to
raise expectations regarding the likely impact of federal intervention.
Neither President Taft, nor his Attorney General had taken an active part
in the debate that had followed the introduction of Mann’s bill. Both men were
favorably disposed toward using the commerce power for the promotion of
national interests, but they remained strongly committed to the concept of
federalism as a system that reserved certain powers, particularly the
responsibility for law enforcement, to the states. Congress’s interest in the white
slave trade and its continuing association with foreign and interstate commerce
were, however, at least in their estimation, sufficient and legitimate grounds upon
which to justify some form of federal intervention. But exactly how was this to be
accomplished? As the Act did not designate which of the federal departments
would be primarily responsible for its enforcement, the Justice Department, more by default, was assigned the task. Over the next two years, the Department struggled to adjust to the demands of its new responsibility. Part of the difficulty could be traced to its failure to prepare for this new mission. Lacking a comprehensive plan and restricted by the fiscal limitation placed upon its appropriations for the detection of crime by a still wary Congress, the Department relied instead upon publicity campaigns directed at the nation’s interstate carriers and upon the encouragement it gave to individual U.S. Attorneys actively involved in prosecuting Mann Act violations. The problem of detecting and investigating such violations, however, remained a critical one.
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During its debate over the White Slavery or Mann Act, Congress gave little thought to the operational or bureaucratic consequences of the bill. The Mann
Act, by expanding federal jurisdiction, had effectively altered the historical context within which federal action had evolved and by which it was still guided. In shifting the focus of federal policy away from the nation’s borders, that is, from its program of immigration control, to matters of a more internal nature, commerce among the states, Congress had failed to see that fundamental organizational changes would have to be made before the Act’s provisions could be successfully enforced. Until the enactment of the White Slavery Act, the agency principally charged with manning the nation’s defenses against the importation of women for immoral purposes was the Bureau of Immigration. Its mandate, in actual fact, its authority was derived from international recognition of a nation’s sovereign right to control its own borders. Earlier, in 1907, under the auspices of the Department of Commerce and Labor, of which it was now a part, the
Immigration and Naturalization Bureau was reconstituted as two separate and, for all practical purposes, autonomous agencies. Much of the old Bureau’s enforcement responsibilities, which were previously treated as programs operated independently of each other, were consolidated within the newly reorganized Bureau of Immigration.42 In 1909, the Bureau, now organized into twenty three districts and offering greater consistency and uniformity in the application of its regulations, set out to regain supervisory control over its field agents and their investigative assignments. Questions concerning the proper use of the Bureau’s field personnel had long been matters of special concern to
42 Smith and Herring, The Bureau of Immigration, 11-13.
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the Bureau’s managerial hierarchy in Washington, more so because of the
growing influence that the U.S. Attorneys’ were exerting over the enforcement of the nation’s immigration laws. For the Bureau of Immigration, the Mann Act could not have been more ill-timed. While the Act left the Bureau’s authority virtually unchanged, it did, on the other hand, greatly enhance the discretionary
power of the U.S. Attorneys, providing them with stronger incentives to co-opt
resources, the Bureaus’ field force, in particular, that the Bureau preferred to
employ in investigations more closely identified with its own border-oriented
mission.43
The reintegration of the Bureau’s field force within the its administrative
structure was a temporary blow to the U.S. Attorneys, not only depriving them of
an important investigative tool, but doing so at the very moment that public
expectations regarding enforcement of the Mann Act were reaching new heights.
The U.S. Attorneys could still, of course, and often did rely upon local resources, the police, prosecutors, vice and “purity” commissions, and the like, for referrals in the cases they prosecuted,44 but such arrangements were too time-consuming,
burdensome, and not always productive. Local investigations were often driven
by a variety of factors, some political in nature, but all reflecting the unique
geographic, cultural, and ethnic features of the locales in question and, therefore, beyond the prosecutors’ control. Such diversity ultimately became an impediment to the level of coordination and concentration that the nationwide enforcement of the Mann Act would require. The investigation of White Slavery
43 Masanz, History of the Immigration and Naturalization Service, 19. 44 Langum, Crossing Over, 57.
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cases was, in fact, proving to be far more difficult administrative and fiscal
problem than the Department had anticipated.
One source of the problem lay with the very nature of federal “policing”
and the limited manpower available for that purpose. Federal investigations were
traditionally reactive in orientation, resting entirely on the efforts of specially
dispatched personnel who, given the limited duration of their assignments, had
no real opportunity to engage in the kinds of prolonged investigations that had
become increasingly necessary for the detection of lawless activities and in the
identification of the lawbreaker. Wickersham, shortly after being appointed
Attorney General, had elevated the Department’s force of investigators and field
examiners to the status of a Bureau within the Department, providing it with a
supervisory structure that helped to centralize its investigative functions and to
tighten oversight of its field work. This structure, however, could not easily
accommodate the methods of operation, a more decentralized workforce, the
establishment of field offices to develop and exploit local sources of information,
greater latitude in the decisions to be made in the allocation of the Department’s local investigative resources, which its new responsibilities required. By 1912, the Attorney General could no longer postpone re-evaluating the government’s position relative to the dramatic rise in reported Mann Act violations. For
Wickersham and his staff, the necessity of exploring the Department’s options in response to this newly granted authority and becoming more focused upon the refinement and improvement of its law enforcement capabilities could not have
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become any clearer.45 Yet another involved the question of funding. Congress,
despite its enthusiasm for the passage of this legislation, had acted with more
restraint in its appropriation of the sums that would be needed to support its
implementation. On occasion, enforcement of the Act, itself an activity in competition with other functions of the Department for the monies and resources available, had to be suspended, a predicament the Attorney General attempted to resolve by creating an entirely new sub-division within its complement of investigators devoted to the prosecution of Mann Act violations and thus deserving of its own appropriations. The separate funding was still not forthcoming, but the creation of an office within the Department overseen by a newly selected Special Commissioner for the Suppression of the White Slave
Traffic resulted in a highly publicized reaffirmation of the Department’s determination, which had the effect of increasing public pressure on Congress and producing increases in the annual appropriations made to the Department to support its crime detection activities.46
Operating under the direction of the Special Commissioner, the new
subdivision moved rapidly to assert its control over Mann Act investigations,
establishing a presence in most of the country’s urban centers and removing its
operational staff from under the supervision of the Attorney General and his
special assistants. A large contingent of part-time or contract agents were hired
to provide the new office with the manpower it needed to cultivate local
informants and to conduct surveys of local conditions. Other techniques,
45 Annual Report of the Attorney General of the United States for the Year 1912 (Washington, D.C.: Government Printing Office, 1912), 48. 46 Langum, Crossing Over, 52, 54; Fred J. Cook, The FBI Nobody Knows (New York: The Macmillan Company, 1964), 56.
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including the use of a national index, were developed to facilitate the
identification of foreign-born prostitutes and the prosecution of the brothel
operators employing them.47 At the time, no one anticipated that the
arrangements made to provide the Department with an enlarged investigative
and prosecutorial capability would gradually undermine the original purpose of
the White Slavery Act. The intensity with which the federal agents performed
their tasks and the growing sweep of their investigations resulted in increased
numbers of indictments, but also raised questions regarding the growing intimacy
of their ties with local anti-vice organizations and the increased emphasis they
were placing upon the deterrent value of their efforts, an objective long regarded
as more appropriately a matter for local authorities. Another concern involved the growing numbers of native-born among the defendants being indicted, a development that soon came to the attention of the Attorney General and raised concerns that the threat of prosecution under the Mann Act was increasingly being used for unintended purposes, including extortion or blackmail or merely to punish behavior that was strictly private in nature and not associated with organized prostitution.48
By 1915, the Department’s approach to its Mann Act prosecutions was
undergoing serious revision as a result of a number of new developments. As
originally proposed, the White Slave Traffic Act had been intended “to regulate
and prevent the transportation in interstate and foreign commerce” of “alien”
women. While the reference to “alien” women did not survive the bill’s
47 Cook, The FBI Nobody Knows, 57-59; Langum Crossing Over, 55-57; Athan G. Theoharis, Ed., et al. The FBI: A Comprehensive Reference Guide (Phoenix, AZ: Oryx Press, 1999), 104. 48 Athan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University Press of Kansas, 2004), 18-19.
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enactment, there was no question among the congressmen debating this
proposal that it was not directed against ordinary prostitution, which so clearly fell
within the purview of the local police powers, but rather against organized and
commercial vice. Congress’ intention was far from complicated: the Act was
expected to do no more than “to supplement local authority by reaching interstate
transportation for commercial purposes.”49 Though almost immediately
thereafter challenged in court, Congress’ power to regulate the interstate
transportation of women for the purposes of prostitution was determined to be a valid exercise of its power in the case of Hoke v. United States,50 which in
sanctioning criminal conspiracy charges against the prostitute herself, further and
dramatically extended the reach of the law beyond its original design.
Subsequent federal court decisions broadened the scope of the Act, even
facilitating indictments in noncommercial cases and transforming its original
purpose, the suppression of commercial vice, into a campaign against reports of
acts of “debauchery” or immoral behavior.51 Rulings such as these did little to
encourage the U.S. Attorneys from exercising the kind of restraint the
Department was calling for in its guidelines, a trend that would become a
continuing source of frustration and, occasionally, embarrassment for the
Department of Justice.
As long as the Mann Act could be considered one of the more prominent
examples of national legislation enacted to preserve basic social and moral
values, it continued to draw significant support. Eventually, however, it began to
49 Marlene D. Beckman, “The White Slave Traffic Act: Historical Impact of a Federal Crime Policy on Women,” Women & Politics 4, no. 3 (Fall 1984), 87. 50 227 U.S. 308 (1913).
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lose its effectiveness and, therefore, its relevance in the face of changing local
conditions and a more aggressive and innovative use of local resources.
Between 1903 and 1915, the mainstay of the urban prostitute’s trade, the
segregated vice or “red light” district, came increasingly under assault. After
years of unremitting effort, local anti-vice movements, with the support of civic reformers, the clergy, business men, and professionals in medicine and law, succeeded in turning public opinion against the practice of relegating prostitution to specially designated vice districts and in favor of a policy of complete and utter repression.52 In cities across the nation, efforts to raise the standards of urban
politics and to expose its links with the vice trade strengthened opposition to the
vice district. Special programs were devised to reform the prostitute, and
ordinances were enacted to facilitate the use of injunctions to close the brothels
and to criminalize pandering.53 New regulatory agencies were introduced to
enforce health and safety standards, and special courts were established to
oversee the rehabilitation of offenders. Much as the progressives and others had hoped, the passage of the Mann Act had inspired many municipalities to follow suit, combining private and public resources to combat an evil against which all levels of government clearly stood.54
The unexpected outcome of these efforts to eradicate commercial vice,
however, was far from what was anticipated. Though driven from its fairly visible
and informally sanctioned patterns, prostitution as a practice displayed
51 See Athanasaw v. United States, 227 U.S. 326 (1913) and Caminetti v. United States, 242 U.S. 470 (1917). 52 Cummings and Carl McFarland. Federal Justice, 382. 53 Keller, Regulating a New Society, 121; Walker, A Critical History of Police Reform, 99-102; Jon C. Teaford, The Twentieth-Century American City (2nd Ed.) (Baltimore: The Johns Hopkins University Press, 1986), 36-38.
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considerable resilience despite the pressure placed against it. The work of the
police and the citizen’s committees drove prostitutes underground, not out of
business, and dispersed their numbers, making them more dependent upon
those who could control access to the their trade. Thus insulated, prostitution
became more difficult to detect, requiring increasingly greater investments of time, manpower, and resources in exchange for ever smaller returns, a trend that did not escape the attention of the Mann Act enforcers or their superiors in the
Department of Justice.55 The growing sophistication of the vice trade, its
association with organized crime, and its diminishing status as a pressing political
or reform issue simply made the federal government’s continuing involvement with local vice suppression efforts increasingly superfluous. By 1914, the Justice
Department’s attention, now divided among different and competing law enforcement priorities, including enforcement of the Neutrality Act, had been effectively diverted to more pressing matters.56 Then too, the Department was
under new direction, the result of a national election that had placed the
Democratic President Woodrow Wilson into office. The new administration,
reflecting a different political orientation and giving greater voice to the nation’s
southern and western regions, was more sensitive to issues of states’ rights and
local autonomy. As a consequence, questions raising the issue of federalism in
reference to the enforcement of the Mann Act were again resurrected, causing
considerable unease within the Department. Enforcement of the Act, however,
would continue, a symbol of the government’s jurisdictional authority and its
54 Keller, Regulating a New Society, 120-121. 55 Sealander, Private Wealth and Public Life, 166-167; John F. Decker, Prostitution: Regulation and Control (Littleton, CO: Fred B. Rothman & Company, 1979), 71.
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commitment, in increasingly troubled times, to the protection of the nation’s moral
and cultural values.
b. The Department of Treasury, Internationalism, and Drugs
What arguably gave the federal government the strongest grounds upon which to intervene in the distribution of drugs was its authority over interstate and, to a degree, international commerce. Along with this responsibility, it controlled the means, both diplomatic and legal, with which it could address those aspects of drug policy enforcement that exceeded the jurisdictional reach of the states. And yet, despite the federal government's responsibility for interstate commerce and the management of the nation's borders, the question most likely to have been raised in the early part of the twentieth century by its
involvement in matters concerning the health and safety of local communities -
matters traditionally of state concern - would have concerned only the
appropriateness of its action under the Constitution. If, on the other hand,
federalism were to prove sufficiently flexible so as to accommodate the
cooperative arrangements between the states and the federal government, in the
interest of preserving vital national interests and political values in the face of white slavery, could it not also provide an equally accommodating framework within which federal and state corporation could be assured in combating yet another menace, the "destructive influences of narcotic poisons?" 57 In the
1880s and well into the 1890s, the use of drugs was believed to hold very little, if any, threat to the public, at least none that could be fully appreciated anyway.
56 Act of July 31, 1912, 37 Stat. At L. 240; see Leo M. Miletich and Dan Stuart’s Fistic Carnival (College Station: Texas A & M Press, 1994).
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The best known drug opium could not, by law, be manufactured in the United
States after 1887, and in an attempt to discourage its importation, it was
subjected, in 1890, to especially high duties.58 But opium, like other popular
drugs of the day, morphine, cocaine, and heroin, following its introduction in
1898, had important medicinal uses in an era when self-medication was
widespread and the practice of medicine was relatively "unsophisticated."59 The popularity of heroin and cocaine especially increased substantially as a result of their promotion as medicinal remedies for a wide range of maladies and because of their widespread availability. By 1900, however, the public's awareness of the harmfulness of potentially addictive drugs had grown. Opposition among doctors and pharmacists to the wholesale use of drugs was increasing, especially as evidence of drug abuse became not only more visible, but more quantifiable and thus more easily represented as a significant public health issue.60
As advances in medicine lessened the necessity for narcotics and the
development of new pharmaceutical products began to replace the potentially
addictive drugs on the market, the public became increasingly wary of patent
medicines, even more so after Collier's Magazine published a series of exposes'
in 1905, which disclosed the contents of some of the more popular brands of
57 Harry J. Anslinger, "Organized Protection Against Organize Predatory Crime: Peddling of Narcotic Drugs" Journal of the American Institute of Criminal Law and Criminology 24 (May-June, 1933 - March-April, 1934), 637. 58 Act of October 1, 1890, 26 Stat. L. 620; Ruffus King, 18-19; Laurence F. Schmeckebier and Francis X. A. Eble, The Bureau of Internal Revenue: Its History, Activities and Organization (Baltimore, MD: The Johns Hopkins Press, 1923), 115. 59 Alfred W. McCoy, The Politics of Heroin: CIA Complicity In the Global Drug Trade, 2nd Ed. (Brooklyn, NY: Lawrence Hill Books, 1999 [1972]), 8. 60 David T. Courtwright, Forces of Habit: Drugs and the Makers of the Modern World (Cambridge, MA: Harvard University press, 2001), 179-182.
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medicines and made a persuasive argument for regulatory legislation.61 The following year, the federal Pure Food and Drug Act was passed. It established national standards for the quality and labeling of all food and drugs transported in interstate commerce, measures that would ultimately contribute to the decline of patent medicine industry. But the statute did not prohibit the distribution or use of addictive drugs. Despite a growing awareness of the potential hazards of certain narcotics, opiates, and stimulants, efforts to limit their availability or to prohibit their distribution were generally confined to the states and resulted in a growing and confusing patchwork of regulations concerning the sale of non-prescribed drugs.62
Though overshadowed by the federal government's early efforts to
achieve international accords restricting the production and distribution of opium,
domestic concerns regarding addiction were critical in setting the stage upon
which the government's drug policy would take final form. While the proponents
of strict drug controls were nowhere nearly as organized as those who
campaigned for the prohibition of alcohol, they were motivated by many of the
same fears and moral and public health concerns. The challenges they faced,
however, were unique to drug usage and, in some ways, considerably more
difficult. For one, drugs had long been touted by the medical community as
being among the most effective forms of treatment for a variety of diseases and
ailments. The benefits derived from their development had not been offset by the
growing concern regarding their addictive effects. Innovations in medicine and
pharmacology, the benefits of which had been made more widely available than
61 Ibid., 179; McCoy, The Politics of Heroin, 9.
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ever before, brought recovery or relief to many people, a fact that made the
abolition of drugs almost unthinkable,63 but not to the extent of discounting the
necessity for some form of restrictive policy. For another, the common
perception of addiction was changing. Increasingly aware of the dangers posed
by a prolonged exposure to drugs, the public's image of the addict as weak-willed
and lacking in strong moral fiber underwent a transformation. The rapid
development and adoption of new drugs in the latter part of the nineteenth
century was accompanied by corresponding increases in the numbers of addicts
that were found among their users, a fact that did not escape attention and which
compelled a general re-examination of the very nature of addiction, a
reassessment made all the more frightening by the astonishing degree to which
entirely "normal" people appeared vulnerable to the effects of addictive drugs.64
In 1903, the highly influential American pharmaceutical Association released a study that warned of the serious threat that widespread addiction posed to the country' welfare. To counteract this "national danger," as it was called, the Association recommended steps be taken without delay to restrict the supply of drugs to more controlled venues and urged that the practice of dispensing drugs for maintenance purposes be abandoned altogether. Though severely criticized by large numbers of the nation's physicians who were opposed to relinquishing any control over the treatment process, these proposals succeeded in garnering additional support for import restriction as a reasonable
62 Courtwright, Forces of Habit, 179-182. 63 Ibid., 173. 64 Donald T. Dickson, "Bureaucracy and Morality: An Organizational Perspective on a Moral Crusade," Edited by Paul E. Rock, Drugs and Politics (New Brunswick, NJ: Transaction Books, 1977), 37.
223
solution to the problem of addiction.65 The passage of the Pure Food and Drug
Act, therefore, while intended to alert the public to the contents of the drugs they
were purchasing on the open market, proved equally instrumental in raising
public consciousness regarding the illegitimate, as opposed to legitimate, uses of
narcotics. The struggle for its enactment, helped in great part by evidence of
widespread addiction, found further reinforcement in statistics that revealed that
the quantity of drug imports actually exceeded the amounts being regularly
dispensed through more appropriate channels. Such revelations were unsettling
and strengthened the distinctions the public increasingly was inclined to make
between the addict under proper medical care and the non-medical user, the
latter being more readily associated with slum dwellers, criminals, prostitutes,
and other people living on the fringes of society. It came as no surprise, then,
that "by 1910," several years before the enactment of the federal Harrison
Narcotics Act, "virtually every city and state [in the nation] had [adopted] anti-drug
laws" for their protection.66 These regulations, while imposing registration and other record-keeping requirements, proved inadequate in stemming the flow of drugs and were exceedingly difficult to enforce. Most of the drugs sold without prescription were made through mail order sales, but federal intervention remained out of the question, for not only were drugs regarded as legitimate commodities in interstate commerce, but the problem of addiction with which they were so closely associated remained a matter that fell under the purview of the states' police powers.
65 Daniel Kagan, “How America Lost Its First Drug War,” Insight (November 20, 1989), 4. 66 Jill Jonnes, Hep-Cats, Narcs, and Pipe Dreams: A History of America’s Romance With illegal Drugs (New York: Scribner, 1996), 34-35.
224
The federal government first became involved with the issue of drug
control as a result of the nation's acquisition of the Philippines following the
Spanish-American war of 1898. At a time when Americans were questioning the
integrity and efficiency of the political institutions and the administrative
capabilities of their own governments, questions concerning the quality and
purpose of the supervision and guidance they intended to provide a newly
conquered people took on a special poignancy.67 As a result, efforts to restore order to the island societies comprising the Philippine archipelago went well beyond the goal of pacification and emphasized, instead, "the importance of
municipal government, health, education, roads, and police as practical
applications" of the nation's "policy of benevolent assimilation."68 The transfer of
administrative control from the military to the newly established civil authority, in
fact, was undertaken in an extraordinarily deliberate way so as to avoid
interrupting this process, but the immediate effect of this transition was to
accelerate the dismantling of arrangements which, under Spanish colonial rule,
had fostered monopoly and impeded economic development.
What the American civil authorities failed to appreciate, however, was the
extent to which the British, through the use of Chinese intermediaries, had
become embedded in the Philippine economy.69 Their investment and commercial interests, which were substantial, included processed opium imported from India and distributed through a carefully controlled network of
67 Paul A. Kramer, “Empires, Exceptions, and Anglo-Saxons: Race and Rule Between the British and United States Empires, 1880-1910,” The Journal of American History (March 2002): 1315- 1354, 1330. 68 Brian MacAllister Linn, The Philippine War, 1899-1902 (Lawrence: the University Press of Kansas, 2000), 200. 69 Kramer, “Empires, Exceptions, and Anglo-Saxons,” 1330.
225
licensed agents. Faced with the destruction of this network and the
consequential explosion in the sale and use of the drug, the American Governor
William H. Taft felt compelled to propose that the previously established system
of licensing be reinstated to restore some semblance of order in the
merchandising of opium and to reestablish control over the outlets from which it
was distributed.70 Congress was unwilling, however, to accept Taft's proposal
and demanded that a special study be made of the situation as a prelude to the
implementation of what would serve as a more reasonable and morally
acceptable plan. In 1903, President Roosevelt dispatched a commission under
the leadership of Episcopal Bishop Charles Brent to study the matter and to
recommend appropriate remedial action. The commission, which took into
consideration the types of controls that have been established in other nations
throughout Asia, eventually expressed its preference for a system that would
operate as a monopoly and would have the authority to license the distributors of
opium and, by means of its control over the market, phase out the availability of
the drug over time. Unwilling even to accept this plan, Congress enacted a
proviso in 1905 directing that immediate measures be taken to suppress the
distribution of opium in the Philippines. Such precipitous action, the commission
and the Department of State were convinced, could never hope to eradicate the
use of opium in the Islands until such time as similar restrictive policies were
made effective throughout the Far East. What was missing, therefore, was a
70 Rufus King, The Drug Hang-up: America’s Fifty Year Folly (Springfield, IL: Charles C. Thomas, Publisher, 1972), 16.
226
more comprehensive and far-reaching approach that could only be secured
through international diplomacy.71
Federal drug policy has always tended to reflect the influences of multiple
interests in the presence of distinct, but not mutually exclusive goals. In 1909, at
the invitation of the United States, thirteen nations assembled in Shanghai,
China, foreign-exchange of years concerning the trafficking and opium.72 By
then, China was in the throes of a crisis which was threatening to destroy its
national integrity. The demand for opium had encouraged domestic cultivation of
the drug on such a scale that all attempts by the central government to exercise
a restraining influence had been seriously rebuffed in the face of threatened
rebellion. The State Department's initiative could not have been more timely
from the vantage point of the Chinese, but the prospect of losing commercial
access to China -"nothing less than the fate of the open-door policy was at stake"
- forced the American delegation, led by Bishop Brent, to adopt a more tentative
approach toward the achievement of their original objective, securing substantial
and comprehensive control over the opium traffic, in order to avoid placing more
compelling national interests at risk.73
The inherent weakness of the American position did not escape the notice
of Bishop Brent or that of Hamilton Wright, a medical doctor with extensive
experience in the Orient and the State Department's representative on the
71 Catherine Meyer and Terry Parssinen, Webs of Smoke: Smugglers, Warlords, Spies, and the History of the International Drug Trade (New York; Oxford: Rowman and Littlefield Publishers, Inc., 1998), 21-22. 72 Ian G. Waddell, "International Narcotics Control," American Journal of International Law 64, no. 2 (April 1970), 311. 73 William O. Walker, III, "U.S. Narcotics Foreign Policy In the 20th Century: an Analytical Overview," Edited by Rafael F. Perl, Drugs and Foreign Policy: a Critical Review (Boulder, CO:
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delegation. Not only had the American delegates been forced to confront
suspicions regarding American designs relative to the economic development of
China,74 but they had experienced considerable frustration, in the absence of
national legislation limiting or prohibiting the import and use of opium, in convincing the other delegates in attendance of the urgent need to adopt more rigorous measures with which to control the production of opium and its
derivatives.75 Following the conference, the newly appointed Secretary of State,
Philander Knox, became convinced that the good will that would result from
encouraging China to be persistent in its search for the resolution to its opium
problems would ultimately facilitate the expansion of commercial relations
between the two countries.76 In anticipation of the next opium conference then
scheduled to convene in the Netherlands in 1911, Wright, now acting as the
nation's opium Commissioner, initiated a highly publicized campaign to secure
Congress' cooperation in the enactment of a domestic anti-narcotics law.
Wright's preparations were largely organized around information he had acquired
through his own research, the State Department being reluctant to involve itself
in what it essentially saw as a domestic issue. The real obstacle to any domestic
regulatory legislation controlling the distribution of drugs was the doubt these
proposals raised respecting the constitutionality of their jurisdictional claims.
Wright's argument respecting the priority to be given treaty obligations over the
constraints of law won few converts and he was forced to present his case to the
Westview Press, 1994), 10-11; Brian D. Inglis, The Forbidden Game: the Social History of Drugs (New York: Charles Scribner's Sons, 1975), 155. 74 Lynn Pan Bruun and Ingemar Rexed, The Gentlemen's Club: International Control of Drugs and Alcohol (Chicago: The University of Chicago Press, 1975), 134. 75 David F. Musto, The American Disease: Origins of Narcotics Control (New York: Oxford University Press, 1989), 31-35.
228 public. Conveying a variety of messages, which alternately emphasized the
"foreign" sources and character of the domestic drug problem, associated non- medical drug use with society's unsavory elements and the higher incidence of criminal violence, and appealed to national pride and a sense of moral leadership77 to his audiences around the country, Wright built a constituency that proved unable to force Congress to ignore the fact that the federal government possessed too few police powers and lacked the necessary authority with which to intrude upon the powers reserved to the states.
The Hague conference met in December of 1911, becoming the first of several that would follow in the next few years. The American delegation, which included both Brent and Wright, was unable, however, to offer any assurance that United States would enact domestic narcotic controls at any time in the foreseeable future, a failure that clearly undermined the seriousness of purpose and the sense of urgency which had accompanied the introduction of the
American proposals. As a result, a renewed commitment was made toward securing a domestic program that would reinforce the world’s perception of the depth of American opposition to the use of drugs for any other than legitimate medical purposes.78 A bill that had been introduced in 1910 by Republican David
Foster of Vermont and which had languished in committee ever since - the victim of intense industry opposition to the detailed, costly, and burdensome recordkeeping requirements it called for - was abandoned in favor of another that
76 Ibid., 39. 77 Douglas Clark Kinder, "Shutting Out the Evil: Nativism and Narcotics Control in the United States," Edited by William O. Walker, III, Drug Control Policy: Essays In Historical and Comparative Perspective (University Park: The Pennsylvania State University Press, 1992), 118; Meyer and Parssines, Webs of Smoke, 21-22; "The Warfare Against Opium Smoking in America," 91 The Outlook (February 6, 1909), 1.
229
made no such stringent demands. The Harrison Narcotic Act of 1913 was
actually the product of a joint effort between the State and Treasury Departments
to craft a law that would avoid provoking either the pharmaceutical trade or the
medical profession and yet still satisfy the Treasury Department's Bureau of
Internal Revenue to which the responsibility for enforcement was to be assigned;
a choice consciously made in the hope that a revenue measure would elicit fewer
objections to the act's constitutionality.79 The prospect of national legislation
acting in concert with the anti-narcotic laws of the states that would
simultaneously satisfy the nation's international commitments while avoiding any
disruption of the relationship between the federal government and the states was
indeed an impressive achievement, but it drew very little attention from the public even as the Treasury Department moved to organize the administrative machinery necessary for its enforcement. As passed, the Harrison Narcotic Act required that records of sales be routinely kept and that all who imported, manufactured, sold, or otherwise dispensed drugs be registered. The act made no mention of addiction and imposed no restrictions on who could register under its provisions. It further provided, perhaps in recognition of the concerns voiced by the physicians' associations and pharmacists who worked directly with the
Treasury Department in drafting the bill, that "nothing contained in this chapter shall apply to the dispensing or distribution of any of the drugs... to a patient by a physician, dentist, or veterinary surgeon ... in the course of his professional practice only." 80
78 David F. Musto, “The Global Drug Phenomena,” 1-4. 79 Musto, The American Disease, 58-59. 80 William J. Chambliss, Crime and the Legal Process (New York: McGraw-Hill Book Company, 1969), 63-64.
230
The Harrison Act, as part of a larger enforcement strategy, was, therefore,
never actually intended to play more than a very minor role, that of a connecting
bridge between an important foreign policy initiative, a policy favoring
international narcotics restriction, and a federal system that made reliance upon
state legislation and enforcement imperative. In this respect, aside from the
circumstances that had made its enactment so compelling, the Harrison Act was
anything but a departure from the federal government's customary practice of
avoiding interference with the states' police powers. Until the early part of the
twentieth century, what legislation existed against the use of drugs had been
initiated by the states whose concerns were motivated by the gradual perception
of addiction as a problem impacting upon communal order and safety. That was
not the federal government’s concern, nor was the Harrison Act, which had been
designed to regulate the marketing of opium and opium derivatives, not to
prevent their use, intended to address the problem of addiction. Those who had
crafted this piece of legislation were preoccupied, instead, with the absence of
any controls over the prescription and dispensation of drugs, areas that were far
more susceptible to governmental regulation.81 It having been a foregone
conclusion that the Treasury Department would be responsible for overseeing
the registration and recordkeeping requirements of the Harrison Act, a narcotics
division was established within the Department's Bureau of Internal Revenue to
attend to that purpose. The Division's place within the Department's structure,
however, strongly suggested that it was expected, given the narrow scope of its
81 John C. McWilliams, “Through the Glass Darkly: The Politics and Policies of America’s Drug War,” Edited by William O. Walker, III, Drug Control Policy: Essays In Historical and Comparative Perspective (University Park: The Pennsylvania State University Press, 1992), 9-12.
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responsibility, to perform a relatively marginal role as an enforcement agency;
not surprising in light of the principal concern and source of the policy that had
made the establishment of the narcotic division possible. But the rather nebulous
language contained in the act whose purpose, restricting narcotics to their
"legitimate" uses the Division was expected to service, would ensure that its role,
however marginal, would invariably involve federalist issues of enormous
significance. What soon became clear was that the Act's principal provisions
were subject to widely varying interpretations, a predicament that would seriously
impair the Treasury Department's ability to perform its anti-narcotic responsibility
and cast a long shadow over the once bright possibilities afforded by this latest
exercise in cooperative federalism.
At the heart of the problem was the Harrison Act's failure to distinguish
between legitimate and illegitimate prescriptions for narcotics. As a component
of the Treasury Department, the Division was not without resources and could
avail itself of the Department's limited but accepted authority to promulgate
clarifying or instructing regulations. As a result, rules prohibiting drug purchasers
from acquiring narcotics from any source other than those properly registered
with the Department and further requiring all transactions in connection with the
resale of the drugs so purchased to be recorded were issued, in great part, to
facilitate the Division's earliest enforcement efforts and to make identification of
the drug buyer or user considerably easier.82 If the regulations regarding registration were intended to limit the drug users' sources of supply to only legally recognized sources, the rules regarding records were certain to make each of the
82 Musto, The American Disease, 122.
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resulting transactions, including the particular type or quantity of narcotic
dispensed, reviewable in detail. The regulations, however, proved to be of little
help in providing the Division with what it needed to effectively police the process
by which drugs were dispensed through medical prescription.
Contemporary medical practices were such as to allow practically anyone
seeking some medicinal remedy ready access to prescribed drugs. Most such
prescriptions were issued in connection with recognized infirmities, but some
were provided to addicts for the sole purpose of maintaining their addiction, a
practice designed to help the addict to avoid the extreme discomfort that
characterized withdrawal. For the Treasury Department, such purposes, whether
motivated by compassion or for profit, were simply not sanctioned under the
statute. It wasn’t long before the Division's field agents and examiners, in
attempting to distinguish between permissible and illicit prescriptions,
encountered the increasing hostility of the medical community. Equally as
troublesome was the fact that they received little encouragement from the United
States Attorneys to whom the Division's cases were routinely referred. From the
perspective of the Department of Justice, it made little difference whether the prescriptions in question were issued "in good faith," that is, with the intent of curing the addiction, or for purely maintenance purposes because the Treasury
Department's enforcement program would likely be regarded as a blatant attempt on the part of the federal government to set standards for the practice of medicine, a matter that lay wholly within the discretion of the states.
The most logical alternative to the frustrations it was experiencing in
realizing its objectives for which it now seemed so ill-equipped would have been
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for the Treasury Department to return to Congress to request a supplemental
anti-narcotics measure or clarifying legislation. For reasons that are not clear,
the Treasury Department seemed reluctant, for the time being, to ask for either in
the way of relief. One possible explanation is that in the years 1914 and 1915, it
was becoming increasingly evident that significant changes were occurring in the
social and political environment in which the Department was operating. In cities
across the nation, the problems of addiction were becoming increasingly
prominent as public issues, and a development that provided the Division with
the encouragement it desperately needed to embark upon an exploration of other
possible enforcement strategies. One important development concerned the
nation’s growing foreign-born population. As the public focused more of its
attention on this group, it became more inclined to believe that addiction, very
much like the narcotics that were its sustaining life blood, was largely foreign in
nature as well as in origin. Public perceptions of addiction slowly began to
harden. Addicts were increasingly regarded as people who were especially
prone to irresponsible, even amoral behavior and just as likely to be perceived as
the embodiment of the worst features of an alien culture, factors that made entrusting the federal government with greater responsibility for drug control
seem sensible and more appropriate.83 Drug historian James Inciardi has
suggested that the changes in the public's perception of addiction also coincided with changes in the nation's addict population. "The combined effects of stigma,
social pressure, the Pure Food and Drug Act, and state controls," he writes,
83 Douglas Clark Kinder, "Shutting Out the Evil: Nativism and Narcotics Control in the United States," William O. Walker III, Ed., Drug Control Policy: Essays in Historical and Comparative Perspectives (University Park: Pennsylvania State University Press, 1991), 118.
234
created "an underworld of drug users and black-market drugs" that fed a growing
sense of alarm and transformed once tolerant, if not sympathetic, public attitudes
toward drug addiction into outright condemnation.84 As a result, addicts increasingly found themselves isolated within a society that was beginning to
question whether medical science was even capable of achieving a cure for addiction. As public opinion became more hostile toward addiction and as an ever diminishing number of doctors willing to undergo official scrutiny because of their continuing treatment of the addict population were pressured into conforming their practices to the standards implicit in the federal government's attitude toward addiction, addicts were left with little other recourse than to turn to illegal sources of narcotics, a trend that completed their alienation and increasingly subjected them to the risk of arrest and conviction.85
The treatment initially accorded the Treasury Department's Harrison Act
prosecutions by the federal judiciary was fairly harsh. Most federal courts were
especially sensitive to the constitutional implications of the Division's campaign
against maintenance prescriptions and did not hesitate to apply a strict
constructionist interpretation to the Act. A case in point was that of United States
v. Jin Fuey Moy, which represented one of the Division's earliest attempts to prosecute a medical doctor under the terms of the statute for prescribing morphine for a known addict. The Treasury Department, employing a relatively new theory of accountability, argued that the defendant Moy, a physician, had
violated the Act by providing a non-registrant, the addict, with a prescription for
84 James A. Inciardi, The War On Drugs II: the Continuing Epic of the Heroin, Cocaine, Crack, Crime, AIDS, and Public Policy (Mountain View, CA: Mayfield Publishing Co., 1992), 13. 85 Musto, The American Disease, 106-107.
235 drugs. The District Court, however, found that, irrespective of whether the drugs had been ingested, their purchase by a known addict did not amount to an importation or a sale or the dispensing of drugs as delineated in the statute.
Going further, the Supreme Court characterized the Harrison Act as being strictly a revenue measure and, as such, meant that the Treasury Department's enforcement of the act along the lines it had argued were clearly exceeded its authority. American involvement in the First World War, however, marked a turning point in the Department's assault on addict maintenance. When the Jin
Fuey Moy decision finally forced the Department to seek broader police authority from Congress, it insisted that effective drug control could only be accomplished by increasing the penalties under the act to include forfeiture and seizure provisions and, more importantly, a provision making the mere possession of drugs, for which no proof of the payment of a tax could be offered, illegal.86 For reasons not apparent but that surely reflected its preoccupation with the war in
Europe and its aftermath, Congress did not immediately respond to the
Department's plea for assistance and the matter remained in committee.
1919 became a particularly fateful year for the government's anti-narcotic campaign. Tacitly admitting that the nature and social significance of addiction had sufficiently change so as to compel a re-examination of the rationale underlying the government's enforcement of the Harrison Act, the Supreme Court reversed itself and rejected the claim that the prescription of narcotics to addicts for the purpose of maintaining their addiction was a legitimate form of treatment.
The Court found that the restrictions imposed under the act were constitutionally
86 Musto, The American Disease, 130-131.
236
valid in that they tended "to keep traffic aboveboard and subject to inspection by those authorized to collect revenue."87 Armed with these more recent Supreme
Court decisions, the Department, through its Narcotic Division, resumed it
vigorous pursuit of a policy which, in combination with a growing disillusionment
with the medical profession's claims of being able to successfully "cure" addicts
of their condition, would eventually eliminate drug maintenance as an available
treatment modality. If there were any question concerning the Court's intention, it
was resolved by the decision subsequently rendered in United States v.
Behrman,88 where the Court distinguished, for the purpose of proving a violation
of the act, between doctors who could demonstrate, by a record of diminishing
doses, that they were in compliance with the law and those from whom no such
evidence was forthcoming and who were, therefore, presumed not to be.
Federal Policing On the Eve of War
The Mann and Harrison Acts, each attempting in its own way to delineate
a clear division of power between the states and the national government,
represented the most important steps the federal government would take prior to
the First World War to address the enforcement responsibilities that had been
thrust upon it. For a century or more, the legitimacy of the government's power
to enforce the law rested upon an established system of local control -
recognition of the communities implied authority to protect the well-being and
safety of its members - and the prevalence of a consensus regarding the moral
87 Webb v. United States, 249 U.S. 96 (1919); United States v. Doremus, 249 U.S. 86 (1919). 88 "Irrespective of the physicians intent or believe, the act is violated where the drugs are placed by him in the sole control and subject to the unrestricted disposal of the drug addict." 258U.S. 280 (1922).
237
and social principles that constitute the foundation of law and guided its application. In an age when the progresses have become increasingly successful in reshaping federal law enforcement policy, this principle held even as the federal courts struggled with the task of creating a doctrinal framework within which the exercise of state police power could be reconciled with the demands of the national economy and yet remain protected from federal preemption. To the extent that the federal government's authority over interstate commerce remained virtually unchallenged and the power of the states to define and punish criminal behavior remained exclusively their own, federal statutes penalizing the interstate transportation of obscene materials, lottery tickets, and even boxing films were closely tied to the jurisdictional basis needed to support their enforceability under the Constitution. In each instance, the enactment of a law excluding an item used for what was perceived as an entirely unacceptable or immoral activity was considered a valid exercise of congressional power it was not directed against the underlying activity, a concern more appropriate for the attention of the state and thus subject to its police powers, but to the "misuse" of interstate commerce, a matter falling squarely within the realm of the federal government. Building on the constitutional principle implicit in this legislation, the progressives succeeded in securing passage of the Mann Act and, pursuant to
Congress's revenue powers, subsequent enactment of the Harrison Narcotic Act.
Each served as a prominent example of national legislation enacted to preserve basic moral and social values. What distinguished the Mann and Harrison Acts from the earlier prohibitive legislation, however, were the methods by which the
238
former were enforced and the questions their enforcement raised regarding
federal intrusion into areas otherwise reserved to the states.
Between 1903 and 1915, the mainstay of urban prostitution, the
segregated vice or "red light" district, came increasingly under scrutiny. After
years of unremitting effort, local anti-vice movements, with the support of civic reformers, the clergy, businessmen, and professionals in medicine and law, succeeded in turning public opinion against the practice of containing prostitution within specially designated vice districts and toward a policy of complete and utter repression.89 This change in public opinion reflected not only a changing
image of prostitution, but growing fears of an increased risk of "social disintegration" as a result of its continuing presence, the spread of venereal
disease, and the sustained threat such conduct posed to the continuing
prevalence of moral standards that were at the very foundation of civil society. 90
In cities across the nation, a multitude of private and public organizations, including regulatory agencies responsible for the enforcement of health and safety standards, were drafted to disrupt the daily activities of brothels and to harass their operators. Ordinances were enacted to criminalize pandering and to empower ordinary citizens, through the use of prohibitive injunctions, to close establishments catering to the prostitute. Much as progressive reformers had hoped, federal action inspired numerous municipal governments and states to draw upon private and public resources to combat an evil they could no longer tolerate. Despite these efforts and though driven from it's fairly visible and once
89 Keller, Regulating a New Society, 120-121; Walker, A Critical History of Police Reform, 99-102; Jon C. Teaford, The 20th-Century American City (2nd Ed.) (Baltimore: The Johns Hopkins University Press, 1986), 36-38. 90 Langum, Crossing Over, 120-121.
239
sanctioned patterns, prostitution as a practice continued to display an amazing
resilience to the pressures directed against it. The work of the police and the
citizens' committees may have been successful in driving prostitutes
underground, but not out of business, and though able to disperse their numbers, made them more dependent upon those, especially organized crime, who could
control access to their trade. Thus hidden or insulated, prostitution became more
difficult to detect, requiring increasingly greater investments of the enforcers'
time, manpower, and resources in exchange for ever smaller returns, a trend that
did not escape the attention of the Department of Justice or its force of
investigators.91
The commercialization of prostitution made the continuation of federal
efforts to monitor and identify potential targets for prosecution increasingly
difficult. By 1915, the Department, now under new direction - the result of a
national election that laced the Democratic President Woodrow Wilson in office -
began to seriously question, in the absence of any substantial evidence of
organized interstate trafficking in women, whether the resources directed toward
Mann Act enforcement could continue to be justified under these circumstances.
The office of the Special Commissioner for the Suppression of the White Slave
Traffic had been closed the previous year and its force of part-time investigators largely abandoned, the victim of continuing uncertainties regarding the scope of the Act and the appearance of new competing enforcement priorities, including
91 John F. Decker, Prostitution: Regulation and Control (Littleton, CO: Fred B. Rothman & Co., 1979), 71; Sealander, Private Wealth and Public Life, 166-167.
240
the Neutrality Act, which were increasingly drawing the Department's attention.92
The Department's new leadership, reflecting a different political orientation and being perhaps more sensitive, in light of the greater voice given the concerns and preferences of the country's southern and western regions, to issues of states rights and local autonomy, had never been comfortable with the prosecution of essentially non-commercial cases even as they had been unable to restrain many of the United States Attorney's involved in its enforcement. That the numbers of cases involving non-commercial and, therefore, non-conforming offenses remained undiminished was a testament to the degree to which the commercialization of prostitution, a trend to which the federal government could never satisfactorily adapt, had shifted the focus of federal enforcement policy away from the jurisdictional considerations upon which the Act of been based
(interstate commerce) to the realization of increasingly moralistic goals. The fact that the Bureau of Immigration had remained active in its pursuit and deportation of suspected foreign prostitutes and procurers did nothing to discourage the
Department from pursuing this change in direction and served only to stiffen competition between the two agencies.93 This new focus, it must be noted, was
brought on, for the most part, by developments over which the Department had
little control, among them a judiciary that failed or refused to recognize the
jurisdictional limitations of the Act, a congress unwilling to take corrective action
for fear of the political consequences of tampering with a policy whose purpose
was to punish immoral sexual behavior, irrespective of whether it involved
92 Vernon Countryman, "The History of the FBI: Democracy's Development of a Secret Police," Edited by Pat Walters and Stephen Gillers, Investigating the FBI (Garden City, N.Y.: Doubleday, 1973), 49-68.
241
prostitution or the conduct of consenting adults, and the powerful influence of a" political sentiment... [that] clearly favored a prosecution of non-commercial libertines" in a society that drew no distinction between sex for pay and sexual promiscuity.94 By 1920, faced with increased public resistance to the growth and
consolidation of federal power that had accompanied the First World War and
rising concerns regarding the extension of federal authority under national
prohibition, the Department found itself increasingly on its own to navigate the
shifting boundaries between federal enforcement policy and state police powers
in its enforcement of the Act, a situation so difficult as to result in a gradual
abandonment of its once formidable enforcement program.
1919 became a particularly fateful year for the federal government's anti-
narcotic enforcement policy. The Supreme Court, perhaps recognizing that the
public perception and social significance of addiction had changed sufficiently to
warrant a re-examination of the rationale that underlay enforcement of the Act,
again took up the issue and, to great surprise, reversed itself. Declaring that the maintenance of addiction was not a legitimate form of treatment, the Treasury
Department's position in the matter, it went a step further to find that the
restrictions imposed under the Harrison Act were indeed a legitimate exercise of
Congressional power in that they tended "to keep traffic aboveboard" and
facilitated "inspection by those authorized to collect [the] revenue."95 The weight
of the Supreme Court's decisions fell heaviest upon the many private and several
public clinics that had become the primary and, effectively, the only remaining
93 Francesco Cordasco, The White Slave Trade and the Immigrant: A Chapter In American Social History (Detroit,MI: Blaine Etheridge Books, 1981), 33-30 4, 40. 94 Langum, Crossing Over, 69-71, 120-123. 95 Webb v .United States, 249 U.S. 96 (1919); United States v. Doremus, 249 U.S. 86 (1919).
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sources of ambulatory treatment for addicts. Most of the clinics, pressured both by a reinvigorated federal enforcement program and a widely shared view of
addiction not as an unfortunate disease, but as a "willful indulgence meriting punishment rather than medical treatment,"96 simply closed their operations, a
factor in the acceleration of the movement of narcotics from legal commerce to
illicit traffic. Between 1920, when the Division of Narcotics was absorbed by the
Treasury Department's Bureau of Prohibition, and 1925, it continued to actively support congressional initiatives that provided for closer supervision of the
manufacture and exportation of drugs and remained active in monitoring the
prescription practices of local medical professionals and pharmacists.
The Treasury Department's involvement with the Harrison Act never completely lost sight of the foreign policy considerations that made its enforcement so imperative. A fundamental feature of that policy, however, had
been the goal of eradication at the source, controlling the actual production of
narcotics, a solution to which American policymakers had always felt a powerful
attraction.97 Toward that end, however, they were finding themselves
increasingly disadvantaged by developments which were even then transforming
the international environment in which they were laboring to achieve their
objectives. American efforts to persuade other nations of the soundness of this
approach coincided with a marked shift in 1911 from preoccupation with
conditions in China to a more internationalist treatment of the problems associated with narcotic production and distribution. The involvement of other
96 Chambliss, Crime and the Legal Process, 65. 97 Peter Reuter, "Eternal Hope: America's Quest for Narcotics Control," The Public Interest 79 (Spring 1985): 79-95, 80.
243
nations, including many of the narcotic producing countries, introduced new
perspectives and conflicting interests in connection with the production of narcotics and the most appropriate methods, or even necessity, for its control.
The American position, now more deeply affected by the domestic legislation that had been adopted than by considerations of foreign policy alone, proved too inflexible in the face of this changing attitude toward international control.
American efforts to negotiate an agreement were made even more difficult by the nation’s failure to join the League of Nations and the State Department's subsequent refusal to cooperate in the transfer of the Hague Convention's administrative apparatus to that body.98 The nation's failure to achieve its diplomatic objectives, international control and the imposition of restrictions upon production worldwide, left it with no other recourse than to fall back upon what had otherwise been intended to serve as purely peripheral measures, interdiction and domestic enforcement, as the whole of its narcotic policy. Deprived of an opportunity to slip the bounds that had been imposed upon its authority by the nation’s federalist traditions had it been charged with the implementation of a legally superseding international treaty provision, the Treasury Department focused its efforts upon those concerns, customs and revenue collection, to which it had been specifically assigned, an approach that would, for a time, leave the primary responsibility for drug law enforcement to the states.
The involvement of the Justice and Treasury Departments with the Mann
and Harrison Acts, was, in the end, fairly indicative of the degree to which the
interpretation and enforcement of these acts was influenced by then
98 Bruun and Rexed, The Gentlemen's Club, 134-135.
244 contemporary understandings of federalism. Unlike the states, the federal government was virtually excluded from enacting laws that provided for the protection and welfare of the people, except as otherwise specifically authorized by the Constitution. In the early part of the twentieth century, this represented a still formidable barrier to the exercise of federal power, but, as the nation found itself confronted with challenges of increasing complexity and importance, the legal distinctions separating the exercise of federal and state power were gradually eased, in part to ensure that the political and cooperative arrangements that had ensued would be allowed to continue, if only to preserve those vital and mutual interests that were at such risk. The tensions that resulted, however, exerted a strong restraining influence upon the federal government’s participation in these essentially improvised arrangements and generated new questions regarding the appropriateness of the federal government’s involvement. To the extent that these questions carried some weight in the implementation of federal policy, they were able to influence the manner in which the Justice and Treasury
Departments organized and pursued their new enforcement responsibilities. The circumstances and foreign policy considerations that lead to the passage of the
Harrison Act, the limited role the Department was expected to play in the implementation of federal anti-narcotics policy, and the absence of any incentive to act well beyond the authority the Act conveyed, provided the Department of
Treasury with little reason to seek the cooperation of local authorities in the
Harrison Act's administration. Thus insulated from the kind of criticism to which the Department of Justice was subjected in its enforcement of the Mann Act and being able to more easily incorporate this enforcement function within its
245
organizational structure, the Department encountered little difficulty in its
administration of the Act’s enforcement provisions. Though similarly burdened by
the vagaries of the statutory language inserted into the Act with which it was
charged with enforcing and concerns regarding the scope of the authority granted it, the Department of Justice was, on the other hand, allowed
considerably more latitude in pursuing its policy objectives. In the end, this would
allow the Department to lay a new foundation for a continuing administrative
relationship between the federal government and the states that would survive
the uncertainty and dissension that arose as a result of its efforts to extend the parameters of its authority under the Mann Act and find extenuation in the necessity of meeting the crisis posed by the security concerns surrounding
American involvement in the First World War.
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Chapter 6
THE MENACE IN CLEAR VIEW
This is a nation of free speech; but this is a time for sacrifice, when mothers are sacrificing their sons. Is it too much to ask that for the time being men shall suppress any desire which they may have to utter words which may tend to weaken the spirit, or destroy the faith or confidence of the people?1
The First World War was a watershed in the evolutionary development of
the institutions responsible for federal criminal law enforcement. Not until the
1960s would events of such crucial significance occur again, and then only after
the resources of a traditionally decentralized system of law enforcement were mobilized and directed against a very different kind of national threat.2 For a brief period of time, traditional notions regarding the proper boundaries of federal policy were suspended, no longer able to provide an adequate framework within
which the proper boundaries between the states’ police powers and federal criminal law jurisdiction could be so readily determined. American involvement in the war in Europe and its adjustment to the great and pressing demands made upon its resources forced the government to assume an unprecedented and expanded role in the nation's economic affairs. Taking control of factories, ship- building and transportation facilities, communication networks, and the pricing and distribution of certain commodities, drugs and alcohol among them, the federal government very quickly became involved in what until then had been an
1 An excerpt from the statement made by the federal District Judge at the conclusion of the trial of Kate Richards O’Hare who had been found guilty, in July, 1917, of publicly declaring her opposition to American involvement in the First World War. She was sentenced to five years in prison. 2 See Virginia Gray and Bruce Williams, The Organizational Politics of Criminal Justice (Lexington, MA: D. C. Heath & Co., 1980), 1-2.
247
unfamiliar process of national planning and direction, a host of new responsibilities that would have significant implications for the nation's federalist framework.3 In the pursuit of military victory, few questioned the necessity of an
administrative mechanism by which the highest levels of efficiency in
organization and manpower and the greatest scales of production could be
achieved. The government’s efforts, however, to employ and manage its new
economic and political powers demanded a near unanimity of opinion regarding
both the aims and the conduct of the war that could only be achieved by means
that heightened fears regarding the existing tensions within society and which
provoked a reaction that resisted popular opinion. The sources of these fears
were not so much the by-product of American involvement in the war as they
were part of an ongoing pattern of hostility and repression that predated the
European conflict. They reflected, for the most part, a growing fear of the
consequences of societal division and widespread concern regarding the growing
militancy of organized labor and the increasingly violent tendencies of those
opposed to any authority on principle. Such fears would eventually result in the
creation of a more closely intertwined system of federal and state action.
For many Americans during the last two decades of the nineteenth
century, the uncertainty produced by a changing economy and the growing
restiveness of the nation's urban population, the composition of which they found
disturbing, were closely associated with what was seen as the most undesirable
aspects of foreign immigration. Consisting mostly of non-English-speaking
3 W. Elliot Brownlee, Dynamics of Ascent: A History of the American Economy (New York: Alfred A. Knopf, 1987), 369.
248
political and economic “refugees” from southern and eastern Europe, these new arrivals were streaming into the nation’s cities and towns in overwhelming
numbers. These foreign immigrants seemed determined to defend the integrity and distinctiveness of their ethnic institutions and customs against the influence of a process of acculturation that found considerable support in the institutions of
American society and a mass culture that was far different from their own. They were wary of the encouragement they received to abandon the only identities they had ever known despite the assurances they were provided from practically every quarter regarding the benefits of American citizenship.4 Increasingly
intolerant of the immigrants’ indifference to the American way of life and their
stubborn adherence to very different cultural values, Americans became
increasingly leery of these “intruders” and more inclined to question their loyalty
and commitment to American social and political ideals.
The growth of such anti-foreign sentiment coincided with other equally
significant changes in American society, a factor that encouraged, in the face of
rising social and economic tensions, the adoption of a fierce and unifying
nationalism as well as a tendency to interpret what were once considered as
temporary or benign cultural distinctions as far more threatening differences in
attitude and political and social beliefs. Long before the advent of war, many
Americans were filled with apprehension regarding the intensifying and
increasingly violent struggle between the nation’s industrial workers, a large
4 Carl Smith, Urban Disorder and the Shape of Belief: The Great Chicago Fire, The Haymarket Bomb and the Model Town of Pullman (Chicago, The University of Chicago Press, 1995), 148; Garry Gerstle, “Liberty, Coercion, and the Making of Americans,” 84, No. 2 The Journal of American History (September 1997): 524-558, 535, and 538.
249
number of whom were foreign born and who were seeking improved working
conditions and better wages, and its industrial and corporate employers who
were equally determined to deny their demands and to maintain unchallenged
control over their companies’ operations. The effects of the resulting strikes and
forceful counteraction on the part of the employers were often devastating not
only for the participants, but for the communities involved. Part of this volatile
mix included groups, radicals, socialists, and others, whose hostility toward
concentrated wealth, capitalism generally, and the repressive practices of local
and state government found bitter expression in demonstrations, the distribution
of protest literature, and organizational activity among the affected workers.
Often ideological in their critique of the nation’s economy, its government, and the relationship between the laborer and his employer, these groups – “making
demands no citizen could honor and employing techniques no moral American
could tolerate”5 – advocated the kinds of solutions and approaches to rectifying
the class, social and economic inequalities in American society that were
anathema to large numbers of the nation’s citizenry, a people, it is well to be
reminded, for whom dissent and agitation of this kind were both politically counterintuitive and socially self-destructive. In the midst of such turmoil, the
progressives’ appeal for solidarity rang an especially responsive and positive
chord, reassuring in its inclusiveness, and clearly reflecting an "ancient American
longing for a unanimous spirit, for a single, consensual set of values that would
guarantee the social harmony, not to mention the enormous efficiency, of the
5 Paul L. Murphy, “Sources and the Nature of Intolerance in the 1920s,” 51, No. 1 The Journal of American History (June 1964): 60-76, 62.
250 nation.”6 But although the progressives had been accurate in their reading of the temper of the times, their call to action, and the assumptions upon which it was premised, contributed, if indirectly, to the public’s growing absorption with the urgency and necessity of revitalizing the American spirit and reaffirming, by coercive means if necessary, the nation’s social and political unity.
The New Dimensions of Crime and Crime Control
Throughout much of the latter part of the nineteenth century, the nation’s police had been primarily concerned with enforcing order and protecting property, functions regarded as far more important than the protection of liberty. In this respect, they were generally supported by the residents of their communities, who valued their vigilance, and by the nation’s courts whose interest in the maintenance of order superseded any consideration given the impartial dispensation of justice. Even as the public’s reaction to the influx of foreign immigrants and the growth of urban centers contributed to the expansion of their strength and powers, these changes had left the police’s traditional approach to the maintenance of order, which relied heavily upon their power to deter unseemly conduct, virtually unaffected. The appearance, however, of foreign criminals and ethnic-centered organizations engaged in a variety of illegal activities, along with the difficulties the police were experiencing in enforcing a growing list of municipal ordinances in the districts where the immigrants were concentrated, forced a reexamination of the organizational structure of the police
6 David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University press, 1980), 63; Stanley Cobin, “A Study In Nativism: The American Red Scare of 1919-20,” 79, No. 1 Political Science Quarterly (March 1964): 52-75, 54; Edward A. Shils, The Torment of Secrecy: The Background and Consequences of American Security Policies (Glencoe, IL: The Free Press, 1956), 78-79, 81.
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and the adoption of new and innovative techniques for the enforcement of law.7
Aided by a growing movement toward the consolidation of police resources and a more selective redeployment of police personnel, trends that made specialization within their ranks increasingly feasible, urban police departments began to field special detachments of detectives in response to increased agitation on the part of labor organizers and the threat, imagined or otherwise, posed by the mere presence of those who found in the teachings of anarchism a context within which to place and better understand the nature of their struggle for recognition and empowerment.8
Of all the events that may have influenced the public’s perception of
anarchism as a dangerous doctrine that advocated the use of violence and
assassination in its opposition to authority and of anarchists as terrorists and
criminals dedicated to the destruction of society, none were more significant than
the Chicago Haymarket bombing and the murder of President McKinley in 1903.
The strikes that had paralyzed the nation’s railroads in the summer of 1875 and their suppression through judicial and military intervention had marked the beginning of an era of serious unrest among the country’s industrial workers.
Their grievances largely unresolved and unable to overcome the divisions that plagued them as a group, many workers became sympathetic, if not entirely
receptive, to the competing voices that spoke out on their behalf, the anarchists
among them. In 1886, following a confrontation between police and striking
7 David A. Caputo, Organized Crime and American Politics (Morristown, NJ: General Learning Press, 1974), 17-18; Howard Abadinsky, Organized Crime (Boston, MA: Allyn and Bacon, Inc., 1981), 29-39. 49. 8 Smith, Urban Disorder and the Shape of Belief, 115-118; Charles A. Madison, “Anarchism in the United States,” 6, No. 1 Journal of the History of Ideas (January 1945): 46-66, 47-49, 57-58.
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workers at the McCormick Harvester factory in Chicago, a rally held on behalf of
the employees and in support of their demands for an eight-hour workday was
disrupted by a bomb that exploded among a large body of policemen advancing
to disperse the crowd of demonstrators. Eight of the officers died and many on
both sides suffered injury in the melee that followed.9 Feeling against the rally
organizers, self-professed or accused radicals all, was especially intense, but the
incident proved to be something of an inspiration for urban police forces across
the continent, compelling many to reassess their ability to cope with what was
seen as an unprecedented threat to public order. From that point in time on,
police forces around the nation began taking on the task of combating radicalism
in its many forms, focusing much of their attention upon the foreign-born
populations of the country’s urban areas.
The use of special squads was hardly a novel concept at the time, but
their employment against suspected anarchists, radical labor movements, and
even labor unions necessitated new and relatively untried investigative
techniques that would eventually redirect police energies into the field of
intelligence gathering and preemptive action and present a viable and less visible
alternative to the more routine, but sometimes provocative police methods of
crowd control and containment.10 With the arrival of a new century and increased political agitation on the part of the socialists and representatives of
the Industrial Workers of the World, the tendency of the police to adopt ever
9 Smith, Urban Disorder and the Shape of Belief, 120-122; Sidney Fine, “Anarchism and the Assassination of McKinley,” 60, No. 4 The American Historical Review (July 1955): 777-799, 777- 778. 10 Frank J. Donner, The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (New York: Alfred A. Knopf, 1980), 32.
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more sophisticated surveillance techniques, comparable in many ways to their
private security counterparts, and a more systematic approach to their
information-gathering activity grew stronger and more widely accepted as
standard procedure. In at least one important way, this interest in the collection
of information represented a significant departure from the traditional law
enforcement role of the police. Under ordinary circumstances, the whole point of
police involvement was the seizure of evidence to support criminal charges of
wrongdoing in connection with a specific act already committed and for the
purpose of justifying conviction and punishment of the party responsible. Police
surveillance of radicals and agitators represented an entirely different approach,
one far more tentative in its purpose, unrelated to any instance of conduct, and
guided not by the nature or the elements of a recognized offense, but rather by
ideological considerations or “subjective judgments and evaluations.”11 Though
the specially formed police units continued to rely upon the use of informants and
intimidation to neutralize those whom they were quick to target, the shifting
tactics of their opponents – a movement toward less provocative forms of protest:
the distribution of leaflets, the use of closed meetings and more orderly and
disciplined demonstrations, boycotts, and engaging in organizational and fund-
raising activities beyond the jurisdictional reach of the police - forced them to
become more versatile in their response12 and increasingly dependant upon
resources from outside of their own organizations.
11 Ibid., 22; James Lardner and Thomas Reppetto, NYPD: A City and Its Police (New York: Henry Holt and Company, 2000), 126-132. 12 Frank J. Donner, Protectors of Privilege: Red Squads and Police Repression In Urban America (Berkeley: University of California Press, 1990), 26-27.
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The anti-radical alliances that arose between the police and important
elements within their communities, political leaders, businessmen, and
industrialists in particular, were essentially arrangements to which a great many
local police departments and their special units tended almost naturally to
gravitate. Police increasingly found themselves empowered by a variety of new
ordinances against disorderly conduct, unlawful assemblage, and anti-vagrancy
laws that clearly invited police action against the kinds of political and labor
agitation that so many local politicians and business leaders not only feared, but
also regarded as especially deserving of police attention. This knowledge and
the image which the police had of themselves as enforcers of society’s norms
and as the protectors of orderly government provided them with such a high
degree of confidence regarding their mandate that it made their cooperation with
private parties whose interests were so clearly aligned with their own seem little
more than a natural extension of their authority.13 Siding with the employers against striking workers, the police developed, in some instances, a reputation for brutality that equaled that of the private security forces hired to keep order within the workplace and which did so, on occasion, under the same grant of power given the police.14 In 1915, the Commission on Industrial Relations,
completing its study of the near-war that had erupted the previous year between
striking Colorado coal miners and the coal operators’ private armies, noted that it
and many of the other strikes receiving their attention tended to reveal that the
line between the police and the private detectives hired by the employers
13 Barbara R. Price, Police Professionalism: Rhetoric and Action (Lexington, MA: D.C. Heath & Company, 1977), 83-84. 14 Donner, Protectors of Privilege, 29.
255
involved was so blurred with respect to the authority and discretion allowed each
as to have been indistinguishable. “By the outbreak of World War I, a network of
police and private detective agencies” would extend throughout “urban America, joined together in a unique collaboration, sharing the same objectives and
surveillance methods.”15
The relations between the police and the private sector, especially the
associations of business groups and industrialists who were so adamantly
opposed to the causes advanced by the those with radical or nonconforming
views, were, however, an important factor both in sustaining the anti-radical operations of the police and in facilitating the coordination of the special squads’ activities with those of state and federal authorities who were then becoming increasingly involved with the threat of radicalism as then perceived. Like all surveillance and intelligence-gathering practices, the work of the special squads was time-consuming and costly, an investment in personnel that could not be justified by the traditional measure applied to all police activity, the numbers of arrests made. Even where the opportunities for effecting arrests were more assured, as they were with the passage of ordinances such as Los Angeles’
“Red Flag Law,” which outlawed the display of a red flag as evidence of one’s
opposition to government authority, enforcement of such local ordinances often
required additional manpower and resources that would not have been available
but for the contributions of funds and privately retained investigators made by the
15 Donner, The Age of Surveillance, 32.
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private sector.16 It wasn’t, however, until the death of President McKinley at the
hands of a man identified as an anarchist - an “instrument of an alien and noxious doctrine that regarded assassination as a legitimate weapon to employ against government and constituted authority” - that police departments across the nation were finally provided with both an opportunity and an incentive to utilize the political connections of their allies to enlist federal aid in meeting the
challenges posed by the labor agitators and radicals with whom they were
confronted.
Stretching Federal Jurisdiction
The assassination of President McKinley resulted in considerable
confusion and uncertainty at the highest levels of federal decision-making.
Despite the prohibitions that had been imposed upon the Secret Service, three of
its agents had accompanied the President to the Buffalo, New York, exposition
where he had been shot. The Service had quietly assumed responsibility for the
President’s protection with the outbreak of the Spanish-American War, an
arrangement that inevitably came to the attention of the House Appropriations
sub-committee responsible for overseeing the Service’s appropriations. By
choosing to take no action, however, the sub-committee indicated to all
concerned that it was willing to acquiesce to this continuing evasion of the
constraints that had been previously imposed by Congress.17 But the
administrative discretion permitted the Service’s director did not allow for a more
16 Joe Dominik, To Protect and Serve: the LAPD’s Century of War In the City of Angels (New York: Simon and Schuster, Inc., 1994), 38-39. 17 Frederick M. Kaiser, “Origins of Secret Service Protection of the President: Personal, Interagency, and Institutional Conflict,” Presidential Studies Quarterly 18, no. 1 (Winter 1988), 110.
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sophisticated and systematic approach to the protection of the president.
Following McKinley’s death, attention focused on the need to expand the
Service’s intelligence collection capabilities beyond what it knew regarding
anarchists residing in the District of Columbia to include the information
generated by the nation’s police departments respecting anarchist activities and
adherents in each of their jurisdictions. The problem, however, was that neither
the Treasury Department, nor any other agency of the federal government
authorized to engage in the active investigation of anarchists or to participate in
the collection and analysis of intelligence regarding the “disaffected classes,”
those advocating violence, who were presumed to support the assassination of
government officials.18 Unable to proceed in the absence of any jurisdiction over
the matter, the executive was forced to surrender the initiative in this matter to
the legislative branch where, in due time, it became inextricably linked to
unresolved issues concerning the limits of federal power.
Faced with a large number of proposals, all of which were presented for its
urgent consideration, Congress gradually focused its attention on two bills, each
of which, given the constitutional issues raised, was subjected to intense and
sometimes acrimonious debate. The first, introduced by Senator George Hoar of
Massachusetts, the chairman of the Senate Judiciary Committee, assigned
responsibility for the president’s safety to the Secretary of War, despite concerns
that the involvement of military forces would detract from the nation’s traditional
emphasis upon the democratic character of the executive office and civilian control over the military. The second, shepherded through committee by
18 Ibid., 113.
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Representative George Ray of New York provided the death penalty for anyone killing the president or anyone in succession for the presidency as well as penalties for anyone advocating the assassination of a public official. Both faced opposition from congressmen, particularly those from the south, who objected to the proposed measures on the grounds that they intruded upon the police powers of the states and established dangerous precedents for the use of military force. Conflict between the houses of Congress over the bills and their subsequent amendment prevented any compromise from being reached and the bills ultimately died in committee.19 It is very possible that whatever enthusiasm
had existed for the passage of either bill was diminished to some degree by the
enactment of the Immigration Act of 1903, which not only increased the
Commissioner General of Immigration’s rule-making authority, but also excluded
from entry or naturalization all persons who believed or advocated the violent
overthrow of government.20 An additional amendment, included immediately
prior to the bills’ enactment, was even more sweeping in its exclusion of all
persons who rejected organized government, a provision that reframed the
subsequent application of the Act in terms of its free speech implications, thereby
provoking a negative reaction on the part of some of the country’s most notable
newspapers and journals.21
19 Fine, “Anarchism and the Assassination of McKinley,” 791-792; Kaiser, “Origins of Secret Service Protection of the President,” 115. 20 32 Stat. L. 1214 and 1222; Sharon D. Masanz, Congressional Research Service, Library of Congress, History of the Immigration and Naturalization Service: a report prepared at the request of Senator Edward M. Kennedy, chairman, Committee on the Judiciary, United States Senate, for the use of the Select Commission on Immigration and Refugee Policy (Washington: U.S. Government Printing Office, 1980), 12. 21 Fine, “Anarchism and the Assassination of McKinley,” 797.
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For a time, the nation’s immigration laws served as the primary
jurisdictional basis for much of the federal government’s effort to contend with the
threat of anarchism. Until the enactment of the Immigration Act of 1903, in fact,
federal authorities, reflecting the prevailing sentiment against anarchist beliefs,
were fairly reduced to pursuing criminal cases against known anarchists under
the guise of the Comstock Act or, in at least one instance, under the Lottery Act,
both ineffectual and haphazard strategies at best.22 Attempts to suppress the
publication and distribution of anarchist leaflets, newsletters, and journals as violative of federal postal laws, however, did meet with a greater measure of
success, but offered no greater satisfaction in light of mounting concerns
regarding the presence of what was perceived as a very real threat to public
order. In the late 1880s, following the Chicago Haymarket affair, Congress had
been deluged with demands for federal action against the nation’s anarchists, but
found itself hamstrung by the difficulties inherent in defining anarchism in light of
the nation’s still compelling view of itself as a refuge for those suffering from
political persecution. Complicating the matter even more was the fact that many
of the congressmen felt uncomfortable targeting an “abstract idea, rather than
conduct, as a ground for exclusion and deportation.”23 The assassination of the
president, however, was enough to sweep away such long-felt sensitivities to
tradition and political principle. The Immigration Act of 1903, however, passed, in
part, in reaction to McKinley’s death, proved to be a relatively limited instrument
22 Ibid., 785-786. 23 Nathaniel Hong, “The Origin of American Legislation to Exclude and Deport Aliens for Their Political Beliefs and Its Initial Review By the Courts,” Journal of Ethnic Studies 18, no. 2 (Summer 1990): 1-36, 6-9.
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in the suppression of anarchism. Between the year of its enactment and 1921,
fewer than forty people were deported for possessing anarchist beliefs.24 One reason for its limited application was the fact that the Bureau of Immigration’s enforcement of the Act tended to be restricted to those geographical areas, the cities on the eastern seaboard that served as the primary points of entry for arriving immigrants, where its operations were generally concentrated and the exclusivity of its jurisdiction over suspect aliens most likely to be respected.
In 1905, the newly organized Industrial Workers of the World, an amalgam of radical labor organizations and socialists, began their assault upon the nation's capitalist system. Half union and half working-class movement, the I. W. W. refused to adopt organized labor's tradition of focusing narrowly upon the interests of the nation’s craft and trade unions and set out to organize unskilled factory and industrial workers with the intention of creating one massive union sufficiently powerful to alter the power balance between wage earners and those who controlled the "machinery of production." Much of the I. W. W.'s attention was focused, in its earlier years, upon the laboring classes in the American west where its preference for confrontational tactics - strikes, mass demonstrations, and industrial sabotage -- over the use of less provocative means of persuasion helped it to acquire a fierce reputation as an organization dedicated to a radical and uncompromising agenda. There in the west, the I. W. W. organizers were able to achieve some initial success in their efforts to organized agricultural workers, lumberjacks, and miners, drawing, in return, the animosity of the
24 William Preston, Jr., Aliens & Dissenters: Federal Suppression of Radicals, 1903-1923 (Urbana: University of Illinois Press, 1994 [1963]), 33.
261 business community and the industrialists whose factories, mines, and industrial plants were made the principle objects of I. W. W. attention. Repulsed by the I.
W. W.'s radical creed and further antagonized by the union’s willingness to meet employer instigated violence and intimidation with equally violent acts of their own, many of those who opposed the I. W. W. turned to the local police for assistance and endeavored to secure federal aid in the form of federal court injunctions and even military intervention to ensure their continuing control over their work forces. The latter, a logical response to the absence of sizable police forces outside of the west's major cities and in light of the expense involved in the maintenance of private security forces, was seen as an important strategy in the campaign to destroy the I. W. W., a motivation they shared with many local law- enforcement officials and not a few of the nation's military officers who were stationed in the affected areas and who urged action against the “alien” elements behind the civil disturbances that so concerned them.
There had indeed been occasions in the 1880s and 1890s when military detachments had been deployed to restore order, particularly in the west where local law enforcement officials and their deputized assistants had been unable to restore order or to protect private property from damage or destruction. These interventions in what had clearly been nothing more than local labor disputes were in violation of the Posse Comitatus Act, which proscribed the use of military force in situations where it had neither been invited by the state governor, nor authorized by the president. Yet there had been virtually no official repercussions from those few instances where the misapplication of military force
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had been so clearly deliberate on the part of the officials and commanders
involved. 25 Though more a reflection of the ill feeling with which the military
regarded labor activism than an actual breakdown in the chain of command, the
ease with which these occurrences had taken place deeply troubled the country’s
national leadership, which was all too conscious of the public debates that
followed the use of federal troops in 1877 and again in 1894 during the
demonstrations against the Pullman Company, to suppress striking laborers.
The role of the Army in suppressing these and other strikes in Idaho and Arizona
resulted in a backlash of opinion that served to further constrain its use, despite
its proven efficiency as a strikebreaking mechanism, a fact not lost on the
nation’s industrialists and corporate managers. In the aftermath of the Pullman
strike, the army had found it necessary to issue instructions to its officers
emphasizing the exclusivity of the president’s role over that of other, including
state, officials in directing operations during civil disturbances and reminding
them that the Army was without the authority to effect arrests.26 The availability
of the National Guard after 1900, however, not only made the involvement of federal troops in the maintenance of domestic order increasingly unnecessary, but also raised the political costs that would be incurred, a consideration that made such action, even in those instances where it was urged by federal prosecutors and U.S. Marshals, especially unlikely.
If the military no longer constituted an option, then there were others, labor’s opponents were convinced, that could serve the same purpose. Thus
25 Joan M. Jensen, Army Surveillance in America, 1775-1980 (Chelsea, MI: BookCrafters, Inc., 1991), 37-45. 26 Ibid., 138-140.
263 joined together in their hopes for some form of federal intervention, business and community leaders, police officials, and politicians approached the national government with pleas for assistance in coping with the threat posed by such organizations as the I.W.W. and the Western Federation of Miners to their collective interests. However, as sympathetic as many federal officials were to their plight, little could be done in light of the then present state of federal law and the constitutional barriers that served as a restraint upon direct federal action.
This did not deter them from monitoring the unions’ activities, particularly in
California and later in Massachusetts, but conditions in both locations offered no pretext for intervention. Even though deportation was considered a less complicated and swifter alternative to criminal indictment and prosecution, representatives of the Department of Justice who had been dispatched at
Attorney General Wickersham’s direction to observe the unions in action had been unable to discover sufficient evidence to pursue either alternative. The
Immigration Act of 1903 was found to be inapplicable to the I. W. W., and the union’s activities hardly arose to the level of a criminal conspiracy against the national government. Left without any legal recourse, federal officials could do no more than to counsel the union’s detractors to seek what relief they could find through the exercise of the states’ police powers, a remedy which could not begin to ensure that peace among the parties involved would ever be achieved.
Not until the outbreak of war would those opposing the radicalization of labor find the support they had originally sought from a now far less restrained, but politically more secure federal enforcement apparatus.
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Neutrality and Preparedness
Though most Americans remained preoccupied with domestic matters in
1915, a growing number was becoming increasingly anxious about the course of the war in Europe. Opinions regarding the likelihood of American involvement, which reflected a diversity of predilections and perspectives, were sharply divided, but remained generally subdued, in great part because of the nation's self-professed status as a neutral state. The speed, therefore, with which
America subsequently abandoned its neutrality and reformulated its national interest proved to be an exceptionally jarring experience for its citizens, giving vent to the dissension that had been held in abeyance until then and heightening anxieties regarding the nation’s ability to wage war with a less than complete commitment to its successful conclusion. Developments in the years immediately preceding the nation's declaration of war in April, 1917, were, therefore, instrumental not only in conditioning the nation's military and economic response to the demands of modern warfare, but also in encouraging a growing involvement on the part of state and local agencies in the domestic enforcement of national policy. That involvement would encourage the widespread use of criminal law against anyone seen as being reluctant to embrace the purpose and ideals that countenanced intervention and facilitate the expansion of federal enforcement activity well beyond its customary concerns and jurisdictional limits.
The outbreak of hostilities in Europe did not immediately affect the nation's continuing trade with the belligerents on either side of the conflict. To supply their vast armies and to cope with the rate at which they were consuming munitions,
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food, and equipment, both the Allied and the Central powers were forced to reorganize their economies in the face of the growing demands of war production, to impose controls over the prices of commodities, and to implement rationing programs, but none of these measures could be sustained indefinitely without access to an outside source of supply. American commerce thus became a prominent factor in the strategies adopted by each of the principal warring nations. For the British, who were the primary beneficiaries of this maritime line of supply, its preservation could not have served a more critical purpose; for Germany, unable to match British sea power, at least on the surface, the interdiction and prevention of this trade would become a vital objective. In 1914, after hostilities had begun, President Wilson issued a proclamation of neutrality, motivated in part by considerations relating to the protection of the nation's foreign trade and by his desire to reassure the
American public of his intention to maintain a neutral stance toward the belligerents.
Remaining "neutral in fact, as well as in name," however, proved to be a very difficult challenge. The realities of American commerce, growing increasingly lucrative and larger in volume as a result of the war in Europe, resisted any attempt at curtailment even as the warring nations, each attempting to deprive the other of the benefits of this trade, repeatedly violated the international rules that required them to observe the nation self-proclaimed neutrality. From the beginning, there been "a strong undercurrent of sympathy for the allies throughout the United States" that found expression in sometimes
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subtle and innumerable ways, not the least of which was a growing interest, particularly among such notables as former President Theodore Roosevelt and
the former Secretary of War Henry L. Stimson, in the nation's actual preparedness for war.27 Whether inadvertently or not, such preparedness
concerns masked the many tensions that had arisen in connection with the
growing outspokenness of German-Americans and others, including pacifists,
Socialists, labor dissidents, and those who were simply opposed to intervention
in "foreign" conflicts or who were deeply troubled by the Wilson administration's
inconsistent treatment of neutrality issues and increasingly wary of the nation's
long-standing cultural and economic ties with Britain.28 Faced with an
international conflict of extraordinary scale and complexity, the government, in its
struggle to develop a comprehensive diplomatic and military plan with which to protect its neutrality, could not avoid becoming more deeply mired in partisan politics, a situation that further inflamed ethnic sensibilities and made the
possibility of attracting a broad based support for any of the policy choices it
might make entirely unlikely.
The political and social turmoil that gripped Mexico after 1910, however,
helped to strip away many of the illusions the Wilson administration may have
had respecting the continuing efficacy of its claim of neutrality. In 1905, a revolt against Mexico's leadership, then represented in the person of Porfirio Diaz, took place and quickly evolved into a full-fledged revolution that eventually swept
27 Otis L. Graham, Jr., The Great Campaigns: Reform and War in America, 1900-1928 (Malabar, FL: Robert E. Krieger Publishing Co., 1987), 56. 28 John Higham, Strangers In the Land: Patterns for American Nativism, 1810-1925 (New York: Atheneum, 1985), 195-197.
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across Mexico's northern states. The violence that ensued inspired wider
resistance and encouraged many thousands of Mexican nationals to flee into the
borderland areas to the north. In 1910, one of the more popular contenders for
power Francisco Madero arrived in Texas where his cause had been warmly
embraced by so many residents, especially those of Mexican origin, and where
he could plan for the reorganization and arming of his followers with only a minimal risk of being interrupted.29 The resulting strain in the relations between
the two countries, however, prompted President Taft to dispatch troops -
eventually some 20,000 the number - to the areas adjoining the border, a gesture
intended more as a demonstration of the nation's determination to preserve its
neutrality than as a redeployment of its armed forces in anticipation of any threat
to the integrity of its borders.
The presence of Madero and his followers, however deeply embarrassed
the Taft administration, which, even as it remained sympathetic to the Diaz
regime, seemed uncertain as to how to resolve the dilemma posed by Madero’s
presence in San Antonio. While the 1794 Neutrality Act forbade any armed
attack upon a friendly foreign government from within the United States, an 1899
treaty with Mexico expressly prohibited the extradition of anyone whose offenses
were “of a purely political character.”30 The Administration’s initial inclination
involved little more than tightening controls along the border, the policing of
which remained the responsibility of the U.S. Marshals and, at designated
crossing points, the Department of the Treasury’s Customs Bureau. To
29 Jensen, Army Surveillance in America, 117-118. 30 Frederick S. Calhoun, The Lawmen: United States Marshals and Their Deputies, 1789 – 1989 (Washington, D.C.: Smithsonian Institution Press, 1989), 218.
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accomplish this, the Marshals were given authority to deputize local law
enforcement officials and to conduct, in the company of small military patrols or
customs inspectors, closer surveillance of the boundary line. Undoubtedly in recognition of their familiarity with local conditions and the population of the border region, President Taft, with the assistance of the governor of Texas, arranged for the expansion of the contingent of Texas Rangers stationed directly across from Mexico and for the federal funds that would be necessary to sustain their operations. But the problem of enforcing American neutrality grew exponentially as more and more federal Departments became involved. The presence of agents representing the Treasury, Justice, State, and War
Departments added considerable confusion to the implementation of a policy that was neither clear regarding who was to provide direction, nor capable of articulating a mission sufficiently expansive to compel a more coordinated
response among all the federal agencies involved. As a result, each of the federal organizations engaged in its “enforcement” was more inclined to interpret
existing federal policy in a functional context specifically suited to its own experience and organizational priorities, a choice that ultimately influenced the implementation of the nation’s neutrality policy, leaving it more fragmented than ever, and further alienated local and state officials whose interest in the border area and views concerning the Mexican conflict differed markedly from those of the Taft administration.31
31 Linda B. Hall and Dawn M. Coerver, Revolution of the Border: The United States and Mexico, 1910-1920 (Albuquerque: University of New Mexico Press, 1988), 19; Calhoun, The Lawmen, 217-218.
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With the election of Woodrow Wilson, Taft’s worried concerns regarding the fate of American business investments in Mexico and his insistence upon the
observance of a strict neutrality gave way to a very different perception of the
nation’s proper role in hemispheric affairs, one that placed far greater value in
social and political order and was more open to intervention as a viable
alternative to strict neutrality. Only a month before Wilson took office, Madero, who had finally succeeded Diaz to the presidency, was assassinated by a rival for his office, General Victoriano Huerta. The death of the much admired Madero and General Huerta’s subsequent attempt to consolidate his control over the various armed factions then active in their opposition to the coup’s leadership quickly raised Wilson’s ire, to the point where the American president ordered a relaxation of Taft’s 1912 prohibitions against the exportation of weapons, a growing number of which began to find their way to Huerta’s enemies. The
President’s directive removed the only measure under which federal agents and prosecutors could effectively enforce neutrality and ushered in a new era of provocation and intervention that would result in the posting of large numbers of troops along the international boundary.32 The swiftness with which the Army
had been deployed made information bearing upon conditions on both sides of
the boundary line a matter of greater priority and encouraged improved relations
with the local and state officials who had largely been left to their own devices in
dealing with the more immediate and practical consequences of the conflict
across the border with Mexico. But in the absence of any constitutional authority,
32 Robert M. Crunden, Ministers of Reform: The Progressive’s Achievement In American Civilization, 1889-1920 (Urbana: University of Illinois Press, 1984), 232, 236-238.
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the role of these local officials in the implementation of the nation’s border
policies was limited to issues of local concern and their decision-making reflected considerations often irrelevant to federal concerns.
The establishment of military control over the vast stretches of land adjoining the border, however, transformed the role that had been conceived for the various federal enforcement agencies with a presence in the region. The increased likelihood of clashes between Mexican insurgents and American army detachments patrolling the boundary between the two nations placed a renewed emphasis upon surveillance of known foreign agents and counter-intelligence activities, but not with the urgency that would have been required to force some resolution of the problems caused by the overlapping jurisdictions and competing interests that made it difficult to obtain the coordination and cooperation needed among the federal agencies involved. The frustrations experienced by the
Wilson administration in resolving these conflicts among the various Departments concerned were further aggravated by the changing nature of the Mexican revolution – its growing radicalism and increasingly anti-American bent – which made the threat of war that much more real. The stepped-up interventionist policies of the American government provided the Administration with virtually no relief from its apprehensions regarding the possibility of war, especially after it was confronted with growing evidence of German designs in Mexico and the increasingly open hostility of a Mexican government intent upon using American intervention as a means of garnering wider support among its own citizens.
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By 1916, Germany’s unrestricted submarine warfare had begun to edge the Wilson administration closer to the possibility of intervention in a war from which it had struggled to distance itself. Prior to the national elections conducted that year, the administration’s policy of neutrality had become a central issue in the Democrat’s campaign as the party attempted to impress the electorate with the President’s success in resisting involvement in a “foreign” war. But the
party’s claim could not suppress a growing unease, even among some of the
administration’s strongest supporters, regarding the nation’s capacity to defend itself, a concern largely derived from the militarization of the border with Mexico and the growing criticism to which the President had been subjected by his
Republican opponents and other proponents of military preparedness. Until then, the administration had been largely guided by the assumption, derived from the nation’s experience in the Spanish-American war, that the country could be ably defended by its small army and the volunteers that could be depended upon to support any larger military operation. The raids of Mexican insurgents upon
American border towns, however, culminating with the Villa incursion into
Columbus, New Mexico, and the American response – the amassing of the greater part of its army along the border, a punitive expedition into Mexican territory, and the deployment of the National Guards of each of the border states save California to provide much needed support for the regular army contingents in the area – suggested otherwise and raised serious questions concerning the nation’s intention to rely upon large numbers of volunteers to meet any future national emergencies. Much as the border crisis would ultimately test the
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effectiveness of the nation’s military structure, so, too, would it stimulate a wide-
ranging reassessment of the nation’s military posture and the role that
conscription would have to play in raising the kinds of modern armies that would
be needed in the event that war was declared. The latter was especially
influenced by developments in Europe where the strategy of offensive warfare,
involving massed armies, had been quickly reduced to stalemate. What
continued to set that war apart from all those conflicts that had preceded it was
the scale of the conflict being waged and the unprecedented killing power of the
ordnance technology that was being so indiscriminately employed, with such
horrific results, in exchange for what seemed such disproportionately limited
ends, providing, in the process, an entirely new significance to the manpower
prerequisites of modern combat.33
Neither Wilson, nor his Secretary of War Lindley M. Garrison had been convinced of the merits of mass conscription, an issue considered so politically charged as to be relatively untouchable. Despite the President’s commitment to the principle of neutrality, the pressure generated by the hostilities in Europe and the continuing losses of American shipping to submarine warfare gradually eroded Wilson’s resistance to the cause of preparedness. As the nation drifted closer to war, the importance of a dependable and more quickly accessible manpower pool with which to build an effective army became increasingly
33 Walter Millis, Arms and Men: A Study of American Military History (New York: The New American Library, 1956), 206; Robert L. O’Connell, Of Arms and Men: A History of War, Weapons, and Aggression (New York: Oxford University Press, 1989), 242-244.
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apparent.34 Toward the end of 1915, the subject of preparedness had been
taken up by Congress, but it wasn’t until after the news of Villa’s raid in New
Mexico had reached the nation’s capitol that compromise between those who
favored Garrison’s proposal for a greatly expanded regular army and a federally controlled reserve force and those, primarily in the House of Representatives, who were advocating for a greater role for the states’ national guard units and for the additional funding that would be required to ensure their combat effectiveness, actually became possible. The National Defense Act of 1916, enacted in June of that year, was exceptionally broad in its scope, going well beyond the customary concerns of military legislation to include provisions addressing economic and security issues as well. Under the terms of the Act, the President was granted sweeping powers with which to mobilize the nation’s manufacturing sector and to regulate its transportation and shipping industries in order to meet the demands of war. He was also authorized to take steps to protect the process of mobilization, among them to conduct surveillance of foreign diplomats and other investigative activities in response to the potential threat posed by the presence of foreign nationals on American soil.35
This last had been the work of Wilson’s Attorney General Thomas W.
Gregory, whose close relationship with Col. Edward M. House, one of the
President’s most influential advisers, and the attention he received for his
aggressive prosecution of one of the Standard Oil Company’s subsidiaries in his
native Texas, had led, initially, to an appointment in the Department of Justice
34Daniel R. Beaver, Newton D. Baker and the American War Effort, 1917-1919 (Lincoln: University of Nebraska Press, 1966), 28. 35 Jensen, Army Surveillance in America, 131.
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and, in 1914, to his advancement to the Attorney Generalship. It had been
Gregory who, having experienced the Department’s growing frustration with the
difficulties experienced in the enforcement of the neutrality laws, first proposed
the enactment of a series of bills that would clarify and extend the jurisdictional
basis upon which violations of the Neutrality Act could be more effectively
prosecuted. But Congress, wary of delegating such great powers as that which
the Attorney General had requested, deliberately delayed acting on the
recommendations. Gregory’s proposals, dubbed the “Spy Bills” by the press,
would have likely gone no further if the Army’s General Staff, increasingly
sensitive to the growing threat of German espionage, had not itself intervened
on his behalf during Congress’ consideration of the defense bill.36 Gregory’s
interest in strengthening the Department’s authority over neutrality enforcement,
a concept that had come to include counter-intelligence connotations, is strong
evidence of the intense competition that existed at the time among the executive
Departments for dominance in the area of internal security. The war in Europe
had apparently made such concerns, long confined to operations along the
Mexican border, practically irresistible. Shortly after the commencement of
hostilities, the Justice Department’s Bureau of Investigation had quietly begun to shift an ever larger portion of its resources away from its customary enforcement responsibilities (Mann Act violations among them) to cases of reported neutrality violations. But the Bureau lacked the authority to intervene directly and openly in matters of suspected espionage and was, therefore, forced to turn down
36 Melvin Dubofsky, We Shall Be All (Chicago: University of Illinois Press, 1988), 438-441; Annual Report of the Attorney General of the United States (Washington, D.C: Government Printing Office, 1919), 12.
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Secretary of State William Jennings Bryan’s urgent request for assistance in
monitoring the activities of German and Austrian diplomats.37 This left Bryan in a
strange and uncomfortable predicament: his department was principally
responsible for all matters affecting or having some bearing upon the nations’
relations with foreign powers, a responsibility that required its oversight of any
counter-intelligence measures employed by the government. But neither the way
the State Department was structured, nor the appropriations it received from
Congress made it possible for it to perform this task. Disinclined to address the
issue with Congress, but unable to ignore the implications of the reports he was
receiving regarding suspected espionage activity, Bryan, with the President’s
approval, arranged for the matter to be referred to the Treasury Department,
which, under the direction of the ambitious William Gibbs McAdoo, did not share
the Attorney General’s reluctance to expand his department’s role in the absence
of any enabling legislation.38
Gregory’s reaction to what he clearly saw as a deliberate encroachment
upon his department’s area of responsibility is unrecorded, but his department’s
objections to the use of the Secret Service, whose involvement, the Attorney
General complained, had not been congressionally authorized and would reduce
the full measure of appropriations the Justice Department would otherwise be
slated to receive, were quickly communicated to Congress. Unhappy with what it
perceived as an unauthorized use of the Treasury Department’s investigative
37 Homer S. Cummings and Carl McFarland, Federal Justice (New York: The Macmillan Company, 1937), 421; Athan G. Theoharis and John Stuart Cox, The Boss: J. Edgar Hoover and the Great American Inquisition (Philadelphia: Temple University Press, 1988), 44. 38 Joan Jensen, The Price of Vigilance (New York: Rand McNally & Company, 1968), 247-248.
276 resources, Congress, in its final version of the defense bill, assigned the responsibility for providing the Department of State with the investigative assistance it had requested to the Department of Justice.39 If the passage of the
National Defense Act in June of 1916 had been intended, however, to resolve the bureaucratic infighting that had arisen as a result of a badly fragmented security policy, Congress not only failed to accomplish its objective, but also demonstrated little understanding of the true nature of the problem.
McAdoo’s continued resistance to the plain meaning of the relevant provisions of the Defense Act represented something more than mere pique on his part: it reflected a growing difference of opinion over the whole meaning of internal security and how this issue was to be treated short of the nation’s actual involvement in a war. From McAdoo’s perspective, the Treasury Department’s investigative and enforcement capabilities offered not only an important advantage to the country’s response to the potential threat of espionage or sabotage, but also, given the jurisdictional limitations of federal criminal law, the most suitable means by which that response could be organized and employed.
In effect, McAdoo’s insistence that his department be given a leading role in providing for the nation’s domestic security was premised upon his and the
Treasury Department’s conceptualization of that threat as not only imminent, but external in its source. He was convinced that the nation had much to fear from
German espionage and that the Treasury Department, which included the
Customs Service, the Coast Guard, and the Secret Service, was best equipped
39 Cummings and McFarland, Federal Justice, 416; Jensen, Army Surveillance in America, 131.
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to detect and to deflect the threat it posed to the nation’s defense preparations.40
McAdoo’s argument soon received important reinforcement from events that occurred in the latter part of the summer of 1916 when suspicions of German sabotage arose as a result of the damage caused a cannon-producing foundry and the spectacular destruction of a munitions loading dock, which showered
New York City’s harbor area with tons of unexploded shells and debris. The investigations of these incidents, in the absence of any directly applicable federal jurisdiction, came within the purview of the local police departments involved, but the special detachments upon whom the actual responsibility fell were quick to turn to the Secret Service, with whom they had long enjoyed a working relationship, for aid in overcoming the barriers posed by the resulting multi- jurisdictional scope of their investigations.41
The Department of Justice, on the other hand, was more inclined to
believe that the greater worry concerned the possibility of subversion and
widespread sabotage, issues with which it had been far more intimately involved
than any other government agency save the Army’s newly established Military
Intelligence Division with which it was enjoying an increasingly closer and
mutually supportive relationship. The presence of several millions of people,
including some eight million or more of German heritage, with different ethnic
40 William G. McAdoo was a man of many accomplishments: a Tennessee native and lawyer, he had achieved considerable success and renown as the president of a company responsible for the construction of the tunnels that linked New York City to New Jersey before receiving his appointment as Secretary of the Treasury. As Secretary of the Treasury, he became an influential advocate of a centralized banking system, which was subsequently organized under the Federal Reserve Act. Less well known was his involvement in urban policing, an interest growing out of his term of service as a New York City Police Commissioner during which he was credited with forming that police force’s first special detective unit, the “Italian Squad,” to investigate the activities of ethnic gangs. Lardner and Reppetto, NYPD, 131. 41 Ibid., 171-173, 178.
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backgrounds, all of whom reflected very “different attitudes toward the
belligerents” and many of whom were openly critical of the Wilson
administration’s commitment to nonintervention, raised fears – reinforced by the
increased activism of the nation’s radical trade movements, pacifists, and others,
including Irish-Americans “resentful” of Britain’s treatment, in the aftermath of the
Easter Rebellion, of its Irish subjects – as to whether Americans could present a
united front in the defense of vital national interests.42 During the pre-war years, those interests were, of course, harder to define, but the Department of Justice’s concerns respecting the activities of anarchists and radicals, which tended to reflect the nation’s growing discomfort with its immigrant population and were influenced by those private associations and public entities actively opposed to radicalism of any kind, ultimately provided the framework within which the
Department identified the most likely sources of any threat to the Government’s domestic and foreign policies and the alternatives available for their neutralization. This situation better explains the Department’s receptivity to the formation of a private organization devoted to the defense of the nation’s home front. Founded originally in Chicago to assist the Bureau of Investigation in meeting the growing demands made upon it by the impending war crisis, the
American Protective League, with the Department’s encouragement, expanded
its membership to other areas where the existence of an unofficial federal
auxiliary capable of meeting any domestic threat of subversion proved, for a
variety of reasons not all of which were connected to combating espionage or
42 John W. Chambers II, The Tyranny of Change: America In the Progressive Era, 1890-1920 (New Brunswick, NJ: Rutgers University Press, 1992), 217; Athan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University Press of Kansas, 2004), 21.
279
sabotage, especially attractive.43 This expansion of the APL’s activities, the
availability of a nationwide force of prosecutors, and the Department of Justice’s contacts with urban police forces across the country unequivocally provided the
Department with a critical operational advantage and a level of recognition that would exceed that of any other executive department, including, despite
McAdoo’s continuing resistance, the Department of the Treasury and its counterintelligence activity. But much of this advantage was actually due to the growing influence among the nation’s political leadership of an image a majority of the nation’s citizens possessed regarding the kind and probable source of the threat to which they believed themselves most vulnerable, an image reflecting a dangerous state of internal division and cultural differentiation that no society, bent upon its own preservation, could long tolerate. That image, perhaps more than any other consideration, would prompt Americans to view oppositional
behavior, dissension, and all other forms of social and political criticism in a very
different light, one that emphasized the continuing importance of a national
system of criminal justice that had unfailingly demonstrated its devotion to the
fulfillment of the nation’s most basic political values over the past two decades.
Crisis and Collaboration
The failure of the Allies and the Central Powers to break, at the cost of
great loss of life, the military stalemate in which they found themselves brought
about a resumption of Germany’s campaign of unrestricted submarine warfare.
Desperate to find a means of forcing the Allies into submission, Germany turned
43 David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980), 81; Jensen, The Price of Vigilance, 17-31; Jensen, Army Surveillance In America, 131-132.
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its attention to their growing dependence upon the shipments of war material and
food supplies they were receiving from neutral and other nations. German
diplomacy, which had grown more hopeful of achieving some form of accommodation with the American government following Wilson’s reaffirmation of his commitment to non-intervention during the 1916 national election, was forced to accede to the requirements of military strategy despite the risk it posed of widening the war.44 On April 6, 1917, following the loss of several more
American ships to German submarine activity, the United States declared war
against the Central Powers and embarked upon a period of mobilization and
wartime preparation that would profoundly affect the course of American
government and the treatment accorded the different ethnic elements of its
population as well as those whose political views clashed with those held by the
majority of Americans. Confronted with a conflict it had sought to avoid, the
Wilson administration was compelled to pursue a level of war planning and a
scale and intensity of preparation for which there was simply no precedent. To
the extent that it had drawn important lessons from its experience in mobilizing
an army along its southern border and could appreciate the extraordinary lengths
to which the European nations had gone in reorganizing their economies and
imposing a greater discipline upon their populations, all for the purpose of waging
a war the United States was soon to join, the federal government must have had
some inkling of the daunting challenges that lay before it.45 But for all of its
determination and the swiftness with which it had moved to declare war, the
44 Brayton Harris, The Navy Times Book of Submarines: A Political, Social and Military History, Walter J. Boyne, Ed. (New York: Berkley Books, 1997), 214-215. 45 Millis, Arms and Men, 210.
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government remained uncertain as to what it extent it could count upon the
loyalty of its own people in meeting those challenges with which it was now fully preoccupied.46 Even before its declaration of war, the federal government had
found itself at a great disadvantage, for it did not possess the institutional
capacity to manage a wartime economy or a complete confidence in its ability to mobilize public opinion in support of such a dramatic reversal of its international policy. Aside from the larger questions regarding how the nation would go about assembling and equipping a modern army and providing the naval and maritime forces that would be needed to ensure its safe arrival at the battlefront, the government had few ideas, and virtually no experience, as to how it might proceed in addressing its concerns regarding internal security. In retrospect, it appears that it had but a single option, and that would soon manifest itself in ways that remained, with but one notable and ultimately passing feature, fully consistent with contemporary notions regarding the nation’s federalist structure
and its commitment to the principle of popular government.
Well before the nation’s declaration of war, there had been an
uncomfortable awareness of the presence of great numbers of immigrants, so
many, in fact, that concern had begun to grow regarding their long-term impact
upon the nation’s character and the continuing viability of its cultural and political
institutions.47 For years, the President and his predecessors had been able to
resist the threat of restrictive legislation through the use of their veto power and
because of the support they were assured of receiving from the immigrant groups
46 Kennedy, Over Here, 66-67. 47 David J. Goldberg, Discontented America, The United States In the 1920s (Baltimore, MD: The Johns Hopkins University Press, 1994), 148.
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and their allies who vigorously opposed any such measures. But patience with
the “gradual processes of assimilation,” along with the erosion of the more
generous spirit that had accompanied it, had given way to suspicion and
intolerance.48 That, in turn, strengthened a long-festering doubt regarding the
ability of the immigrants to assimilate and heightened anxiety over the stubborn
persistence of their political and social orientation and beliefs. As the eventuality
of American involvement in the war in Europe became increasingly more
apparent, these developments served to marginalize the forces that had
traditionally opposed proposals favoring restriction and to produce a political
environment far more amenable to immigration control. The effort to restrict the
flow of immigrants finally achieved success with the enactment, over President
Wilson’s objection, of a new immigration bill in February of 191749. The Act, an
omnibus bill, repealed all inconsistent prior acts and codified the remainder, while
simultaneously adding illiterates to the list of those who were to be excluded.
Included in the bill and subsequently passed into law was a provision that
forbade entry to any member of a revolutionary organization and made aliens
who advocated revolution or violence against the government subject to
deportation.50
The enactment of the proposed immigration bill was due in no small part
to the growing activity of such groups as the National Security League and the
American Defense Society, which had been formed in response to concerns over
48 John Higham, Send These to Me: Immigrants In Urban America (Revised Edition) (Baltimore, MD: The Johns Hopkins University Press, 1991), 53. 49 39 Stat. L. 874. 50 Higham, Send These to Me, 52.
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the nation’s preparedness for war. In the process, these organizations had
become the principal proponents of “100% Americanism,” a perspective that very
openly questioned the patriotism of both the foreign-born and the “hyphenated”
American, German-Americans in particular.51 The country’s decision to go to
war, however, attached a far greater urgency to the establishment of a unified
home front, a task which, with the tacit support of the government, gave
considerable encouragement to a multitude of primarily locally organized
campaigns “to suppress the foreign cultural and political traditions that seemed to
nurture antiwar or anti-American sentiments” within the nation’s diverse population.52 In short order, the pre-war arguments for unity and social cohesion
quickly gave way to an invigorated and impatient nationalism that settled over
much of the country. In a society that had just undergone a period of massive
immigration and had experienced an ever widening cultural diversity, this form of
nationalism showed little tolerance for ethnic differences and demanded, instead,
an unqualified affirmation of the American way of life and an unwavering commitment – through conformity to the nation’s traditional norms and political
values - to those institutions of state which were responsible for the nation’s
defense.53 “Never before . . . had the urge for conformity blended so neatly with
the spirit of nationalism.”54 For such groups, embracing the war and the nation’s
wartime policies meant something more than the course to victory over a
“barbaric” culture and its autocratic regime: it signified an endorsement of
51 Wyn Craig Wade, The Fiery Cross: The Klu Klux Klan (New York: Simon and Schuster, 1987), 148-149. 52 Gerstle, “Liberty, Coercion, and the Making of Americans,” 530. 53 Shils, The Torment of Secrecy, 77-79. 54 Higham, Strangers In the Land, 105.
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“Americanism” and all of the democratic ideals that this concept entailed. In such
a manner was loyalty often confused with the nation’s democratic ideals.55
The public’s support remained an important concern for those federal officials responsible for overseeing the nation's preparations for war and led to the formation of the Committee on Public Information. The Committee would soon take advantage of every possible medium to mobilize popular opinion and to depict the conflict in Europe in purely patriotic and ideological terms: as a struggle for democracy, a struggle in the "cause of freedom."56 But much more
coercive measures would be necessary in light of the continuing uncertainties
that remained regarding the extent to which the nation was prepared to support the Wilson Administration's wartime policies, particularly in connection with the draft, and the possible effect any organized opposition might have upon the nation's continued involvement in what was still perceived, somewhat uneasily, among a recognizable minority of Americans as essentially a "foreign" war.
Following the President’s request for a declaration of war, several pieces of legislation were enacted to address the government's security concerns and to provide the administration with the authority it required to prevent its conduct of the war from being challenged internally or otherwise undermined. Only four months after passing the Immigration Act of 1917 into law, Congress enacted the
Espionage Act of 1917.57 The act made it a crime, punishable up to 20 years in
prison, for any person to interfere with the recruitment of men for the military or
55 Alan Brinkley, Liberalism and Its Discontents (Cambridge, MA: Harvard University Press, 1998), 85. 56 Eric Foner, The Story of American Freedom (New York: W. W. Norton & Company, 1998), 169, 170. 57 18 U.S.C. 792.
285
naval forces or to disclose any sensitive information bearing on matters
concerning the national defense.58 Though ostensibly legislation intended to
punish spying or sabotage, the Espionage Act59 was actually passed to
overcome any resistance to the recently enacted conscription bill and to provide
the executive with the means to suppress any criticism of its conduct of the war
or its administration of the draft that might adversely affect military recruitment or
selective service registration. The very next year, Congress, at the Attorney
General’s request, extended the law through the enactment of the Sedition Act of
191860, which penalized any criticism directed at the government or the
Constitution. The Selective Service bill, passed in May of 1917, required all age
qualified males to register under its provisions. The bill, a critical piece of legislation given the Army’s inability to enlist sufficient numbers of volunteers, was considered a matter beyond partisan debate and had been passed with some trepidation in light of the nation’s still vivid experience with conscription
during the Civil War when it had met with such widespread public disapproval.
To ensure success in the administration of the draft law, the War Department,
under Secretary Baker's personal direction, "mobilized a vast number of agencies throughout the country, including governors of states, mayors of communities, and local chambers of commerce, to popularize the idea of the
58 The act was found to be constitutional in the Supreme Court's decision in the case of Schenck v. United States, 249 U.S. 47 (1919) 59 The act resulted in the imprisonment of a number of notable public figures who, for various reasons, opposed American involvement in the war and were especially vocal in their opposition, among them, Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. 60 40 Stat. 553; the Sedition Act forbade any citizen from using "disloyal, profane, scurrilous, or abusive language" in reference to the federal government, the nation’s flag, or its armed forces. The Act also authorized the Postmaster General to refuse to deliver any mail addressed to those persons who were believed to be dissenters or who were opposed to federal wartime policies.
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draft among their fellow citizens." Assistance was also sought from the
representatives of the state and local Councils of National Defense and other
civic and patriotic organizations to ensure that registration for the draft would be
seen as “an act of civic virtue rather than one of compulsion."61
The limited manpower available to the executive departments at the outset
of the war, along with the greater priority, in terms of the appropriations made
and the authority granted, given the War Department’s needs, weighed heavily
upon the Justice and the Treasury Departments’ early wartime planning and
activity. Much of the Justice Department’s subsequent rise to prominence in the
realm of security enforcement is, therefore, attributable to its connections with
local law enforcement officials and its association and growing relationship with
the American Protective League (APL). The APL made its initial appearance in
Chicago where, in response to the intense political debate that had surrounded
the war preparedness campaign, it had been privately organized to service the
administrative and logistical needs of the Bureau of Investigation’s local field
office, the largest outside of New York and Washington, D.C. In time, its
membership, which grew exponentially after the outbreak of the war (to an
estimated quarter of a million members nationwide62) with the support of local business and political leaders, assumed greater responsibility for assisting the
Bureau and the U.S. Attorneys in a myriad of war-related duties, including classifying enemy aliens, documenting and investigating reported acts of disloyalty, and, occasionally, overseeing the registration of men subject to the
61 Beaver, Newton D. Baker and the American War Effort, 32-33. 62 Jensen, The Price of Vigilance, 46-47.
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nation’s draft laws.63 The APL’s membership, however, would not reach its apex, in numbers or influence, until 1918. In the early months of the war, the availability and usefulness of such resources from the perspective of the Department of
Justice would have been of small consequence. Engrossed with the pursuit of its
enemy aliens program and lacking any other clear war-related responsibility (the
Espionage Act had yet to be enacted), the Department virtually conceded the leading role in almost all matters relating to the nation’s security where it most logically seemed to fall, with the Army, which, now flushed with far greater appropriations and a clearer mandate, was only too eager to respond.
What domestic security concerns the Army had were almost entirely focused upon the disruption of the nation’s war production capacity and the
induction of sufficient numbers of men into the ranks of the military. With respect
to the first, there was already a well established pattern among the country’s
businessmen and major corporations for providing some degree of security to the
nation’s factories, mines, and processing plants, which, in most instances, had arisen in connection with the context of labor-management relations. The
approach management had often taken was one that involved the identification
and subsequent isolation of the “troublemakers” within its workforce along with
the adoption of other measures that could be more effectively employed to
discourage unionist sentiment or organizing activity. The Army's primary
concern, however, had less to do with locating troublemakers or the threat of
unionization than it did with the establishment of a comprehensive system of a
site security, which necessarily included worker surveillance, that would be
63 Ibid., 46-47.
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capable of detecting the presence of a saboteur and deterring the threat of
industrial sabotage, which, if it remained unaddressed, could adversely affect the
nation’s production capacity. Given the Army's pressing manpower needs
overseas and the likely backlash that would likely result from this dangerous and
unprecedented extension of military control, the use of military detachments for
this purpose was simply out of the question. In July of 1917, the War
Department founded, with the assistance of APL officials, an industrial security
system, which, in effect, extended worker surveillance programs across the
breadth of the nation’s industrial complex. Military officers assigned to the
Army's Military Information Division (MID) soon became active in recruiting
private detectives and police investigators, the latter specially furloughed to the
Army, as well as informants to infiltrate labor unions and to report on strike plans and preparations. As a result, these programs of "surveillance, often combined with an ideology of company loyalty, became the major [means] of countering the activities of union organizers and of checking labor disputes” even before they had begun.64 Virtually free of any congressional restriction upon its role in the
realm of domestic security, MID's attention was soon redirected toward the
traditional enemies of those businesses and employers whose cooperation was
figuring so prominently in the Army's expansion and increased supply.65 In a political environment made more unstable and apprehensive as a result of the
Russian Revolution and the rise of the Bolsheviks as the dominant political group in what was soon to become the Union of Soviet Socialist Republics, the
64 Jensen, Army surveillance in America, 146, 147-148. 65 Foner, The Story of American Freedom, 177.
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resurgence of the I. W. W. - its renewed effort to organize agricultural workers,
laborers, and miners, and the increasingly strident criticism it directed against the
Wilson Administration’s war policies and conscription practices – caused
considerable consternation to War Department and the governments of those
states in which the union was becoming especially active. In what was clearly a
deliberate effort on the part of the Army to destroy the union, a new combination
of tactics were devised to deprive the I. W. W. of its leadership and to disrupt its
organizing activities. Whether by covertly instigating or openly resorting to brute
force and intimidation in its opposition to I. W. W.-sponsored strikes, the Army
hardly hesitated before moving aggressively to disperse the union’s membership
among the miners of Montana and Arizona and the lumberjacks in the State of
Washington.66
The use of Army personnel, many in uniform, to prevent workers from
striking or to otherwise pursue their grievances in connection with the conditions
of their employment, as well as the Army's tendency to resort to patently unlawful
methods, including the preventive detention of union leaders and organizers,
caused widespread dismay among whole segments of the public. As a result.
the War Department was forced to reassess its policy toward radical unionism,
especially in view of the force levels that had been committed to its
implementation and the disaffection its actions had caused among the ranks of
organized labor and American workers generally. By the end of 1917, the War
Department, with the President’s encouragement, quietly retreated from its open
66 Nathaniel Hong, “The Origin of American Legislation to Exclude and Deport Aliens for Their Political Beliefs, and Its Initial Review by the Courts,” The Journal of Ethnic Studies 18, No. 2 (Summer 1990): 1-36, 25.
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hostility toward radical unionism and the more activist elements of organized
labor and gradually adopted a labor policy better suited for the promotion of
improvements in the relations between labor and management and more effective in discouraging the nation's business interests from taking advantage of the current war emergency to strike at organized labor. The Army's retrenchment may well have coincided with the Justice Department's re-involvement in the government’s overall policy toward radical labor and dissidents generally, but, in actual fact, the Department’s return had been carefully orchestrated so as to avoid any interruption of the government’s efforts to suppress its critics.67 Under the Selective Service and Espionage Acts, the Justice Department’s new responsibilities virtually assured that it would play a far more active role in the implementation of the Administration’s domestic security program and the legal means, given its new jurisdictional authority, to do so.
Throughout the fall of 1917 and into the spring of 1918, the Department of
Justice received numerous reports regarding the Army’s domestic intelligence activity in the Northwest and mid-western regions of the United States. The
MID’s continuing and often blatant disregard of the limits that the Department had insisted were applicable to its operations under the law fueled an ongoing dispute that reached well into President Wilson’s cabinet even before the nation had committed itself to the war effort. Unable to tolerate the situation further,
Attorney General Gregory and his Division Chief O’Brian warned the Secretary of
War that the Army seemed intent upon displacing duly constituted civil authority
67 Athan G. Theoharis, “Political Policing In the United States: The Evolution of the FBI, 1917- 1956,” Mark Mazower, Ed., The Policing of Politics In the Twentieth Century: Historical Perspectives (Providence, RI: Bergahn Books, 1997), 192.
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in its campaign against the dissidents and that the matter required his immediate
attention. Secretary Baker, too, had become increasingly uncomfortable with the
Army’s treatment of striking workmen – he firmly believed that the “best answer
to radical labor was an inviting alternative”68 - and the growing criticism of its
close collaboration with the very same corporate interests who, as a result of
their opposition to the unions and their cooperation with the MID, were profiting
from the low wages paid their workers and the lucrative government contracts
they were receiving. Though the Army had hardly been alone in demonstrating
its zeal in its pursuit of dissidents or in its condemnation of criticism directed at
the nation’s involvement in the war as “subversive” or suspect,69 its approach
was clearly threatening to become uncontrollable and increasingly more likely to
undermine the Administration’s rather tenuous claims upon the extraordinary and
conditional emergency powers that had been granted to it for the prosecution of the war. Baker’s decision, however, which was to acknowledge the Justice
Department’s primacy in the field of domestic security wasn’t necessarily prompted by this concern alone.70
In 1916, Baker had drawn upon his experience as the reform mayor of
Cleveland to commission a study of conditions in the military camps that had
been established along the nation’s southern border and to implement the
recommendations provided him by the man who had conducted the study,
Raymond B. Fosdick, the American Social Hygiene Association’s principal
68 Beaver, Newton D. Baker and the American War Effort, 234. 69 William R. Corson, The Armies of Ignorance: The Rise of the American Intelligence Empire (New York, NY” The Dial Press, 1977), 45. 70 Jensen, Army Surveillance In America, 173.
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adviser on vice reform and police practices. The following year, Baker appointed
Fosdick chairman of the Commission on Training Camp Activities, which
embarked upon a campaign to enforce the provisions of the Military Conscription
Act prohibiting the sale of alcohol to the nation’s soldiers and further providing
the President with unprecedented powers to suppress gambling and prostitution in all areas frequented by or which were accessible to military or naval personnel.71 In 1918, Congress began its consideration of a bill to establish military zones around many of the war-related manufacturing plants and troop encampments springing up throughout the United States, in effect, extending military control over much of the country. This proposal was supported by the military commander of the MID and, rather surprisingly, by the Assistant Attorney
General Charles Warren, both of whom argued that the military was better prepared to contend with the dangers posed by German espionage than were any of the civil authorities in the affected areas. Attorney General Gregory, however, strongly opposed the measure on the grounds that such a drastic step would erode support for the Administration’s wartime policies, undermine confidence in the ability of local government to maintain order, and supplant local criminal justice systems that were better placed to deal with concerns of this nature.72 Baker supported Gregory's position in principle. A progressive both in
politics and by personal inclination, the growth and expansion of federal power
had given him reason to be concerned, especially where, as here, the action
71 Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism (Lexington, MA: Lexington Books, 1977), 102; Michael Kazin, The Populist Persuasion: An American History (New York: Basic Books, 1995), 71. 72 Jensen, Price of Vigilance, 108, 115, 119; Jensen, Army Surveillance In America, 168-169.
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urged upon him was nothing more than a dangerous precedent for a centralized
state.73 In the absence of any other option, the Army was thus made to
relinquish its supervisory responsibility over its force of civilian agents, volunteers, and informants to the APL, which was known to be actively engaged
in such matters on behalf of the Bureau of Investigation. Warren’s continued
advocacy of the bill eventually resulted in his dismissal, a clear sign of Gregory’s impatience with the Assistant Attorney General’s insubordination and his festering resentment of the MID’s encroachment upon what clearly had become
the Justice Department’s exclusive venue.
Originally pressured into action by the governors of the various states
where the IWW’s influence was greatest, the Department of Justice finally authorized a limited study of the union’s radical orientation and undertook to
assess the threat it posed to public order in areas in which it active. Over time, it
had become increasingly apparent to the Attorney General that neither the
Army’s intervention, nor the prosecutorial efforts of the local U.S. Attorneys had
been sufficient to produce truly meaningful results. But now finally armed with a
far more potent weapon and clearer jurisdictional grounds upon which to justify
its involvement, the Department - no longer confined to the relatively limited
enforcement provisions of the Immigration Act of 1917 - set out to deprive the
union of its leadership. In September of 1918, the Bureau of Investigation,
supported by thousands of APL members and operatives, soldiers, and police
raided the IWW national headquarters in Chicago and in three other cities. Over
a period of three days, more than fifty thousand suspected radical unionists,
73 Beaver, Newton D. Baker and the American War Effort, 215-216.
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foreign born activists, and others were detained. Though it failed to destroy the
union, its stated objective, the Department drew little criticism for its actions.
Throughout the remainder of the war, however, for reasons that had more to do
with the Department’s minimal resources and its still decentralized structure,
individual U.S. Attorneys would be left to their own discretion in determining what
additional action might be taken in combating this menace. Toward that end the
continuing involvement of the APL proved indispensable.74 This approach, however, did little to encourage a wider appreciation of the Department’s policies or its sensitivity both to a growing list of abuses that inevitably resulted from its inadequate supervision the Department’s field personnel and the atmosphere of repression to which these prosecutions and those of dissidents generally were
contributing.
The Justice Department’s enforcement of the Selective Service Act,
however, presented an entirely different challenge and one that proved itself far
more controversial, drawing critical attention to its relationship with such quasi-
official organizations as the APL and raising questions regarding the
appropriateness of its expanded criminal jurisdiction. Inter-agency rivalry,
clashing personalities, and the practical constraints that affected the very manner
and scope of the Department’s operation had been greatly influential in shaping
the Justice Department's ongoing relationship with the APL and had enabled the
Department to develop, if only temporarily, a police power roughly comparable to
that of the nation’s local police agencies, an approach to enforcement unique in
74 Preston, Aliens & Dissenters, 126-127; Curt Gentry, J. Edgar Hoover, The Man and His Secrets (New York: W. W. Norton & Company, 1991), 71.
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its history. On the eve of the First World War, the United States had not been
prepared to support a military expedition to Europe, much less to dispatch an
Army of a size that would have been necessary to guarantee a successful
outcome. Even before the nation had committed itself to the Allied cause, it had
become apparent that the nation could not possibly raise an army without resorting to conscription, a proposal that quickly, though hardly without friction, evolved into a Congressional enactment, which, in turn, evoked very little enthusiasm on the part of nation’s citizenry. To make the Selective Service Act more palatable to the public, the Administration carefully crafted this law so as to ensure that its administration would remain decentralized and capable of accommodating local participation and discretion in the classification and selection process. The lengths to which the Administration went, however, to gain the public’s support and to win its confidence failed to alleviate the concerns and the strong feelings of many who had opposed preparedness or militarism of any kind as well as those who resented the federal government’s conscription in connection with a “foreign” war as opposed to the defense of the homeland or who remained strict adherents of principles or beliefs that made acceptance of the nation's military intervention impossible as a matter of conscience.75
Resistance to the draft grew, it would seem, in direct proportion to the growing intensity of the government's efforts to overcome such resistance and surfaced in
75 Beaver, Newton D. Baker and the American War Effort, 30-35; John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America (New York: Free Press, 1987), 211-212.
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many different and, for the government, troubling forms, including "evasion, foot
dragging, and desertion."76
To address the problem caused by the growing numbers of men who had
either failed to register for the draft or to respond to their induction notices, the federal government had little recourse other than to seek assistance from state and local authorities. This led, inevitably, to the involvement of local police organizations which, as the occasion demanded, were called upon to conduct
“roundups,” that is, the practice of stopping and questioning men of draft age with respect to their draft status and detaining them in the event that they could not produce proof of their registration for selective service or deferment. Local police departments and law enforcement officials, always sensitive to any challenge to their authority or to the maintenance of public order, proved especially adept in their adjustment to the new demands made of them. In the cities, especially, where the police had adopted a quasi-military style of organization, along with uniforms and military-like chains of command that facilitated closer identification with the military and a more appreciative response to the requirements of federal policy, law enforcement officials began to include a growing number of federal offenses - the failure to register as an enemy alien or for the draft, making said dishes statements, and obstructing the war effort, for example - among their policing responsibilities. The existence of literally thousands of autonomous local law enforcement agencies, both rural and urban, had always made the achievement of any sustained coordinated effort among the nation’s police next
76 Jeanette Keith, “The Politics of Southern Draft Resistance, 1917-1918: Class, Race, and Conscription in the Rural South,” The Journal of American History 87, No.4 (March 2001), 1352.
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to impossible. This expanded role, however, as “guardians not only of public
order, but of the safety of the Republic itself,” encouraged police forces across
the nation, given the considerable public support they were assured of receiving,
to acknowledge the priorities given the operational requirements and objectives,
if not always the direction, of the federal agencies seeking their cooperation.77
Many of the nation's largest urban police forces went so far as to establish special sections devoted entirely to "war" work, creating, in the process, far closer relationships with those federal agencies, principally the Bureau of
Investigation, the Secret Service, and the military and naval intelligence services, who were, in turn, eager to establish such collaborative arrangements as a means of extending their activities beyond the customary venues and legal jurisdictions of their departments78 and to gain, thereby, access to the larger
forces the police commanded and, more likely, the police powers they wielded.
The availability to all participants of such close and mutually supportive
arrangements gradually evolved into a system of political and civil collaboration
that tended to obscure the traditional distinctions between state and federal
criminal jurisdiction. These arrangements, while providing the federal
government with a policing capability unique in its enforcement history were,
nevertheless, relatively unstable, often inefficient, and not always responsive to
central direction. In 1918, the activities of these pseudo-public organizations and
the federal agencies with which they were involved raised significant concerns
77 Frank J. Donner, Protectors of Privilege: Red Squads and Police Repression In Urban America (Berkeley: University of California Press, 1990), 35-36; Keith, “The Politics of Southern Draft Resistance, 1917-1918,” 1359 78 Lardner and Reppetto, NYPD, 183.
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regarding the constitutional and federalist implications of their association. In the
summer of that year, at the urging of the Bureau of Investigation, Attorney
General Gregory, with Secretary of War Baker’s consent, approved a limited
experiment in the employment of tactics designed to apprehend all those in
violation of the draft laws within predetermined geographical areas. These
“slacker raids” increased in size and number, culminating in a campaign that cast
a net over the boroughs of New York City and several neighboring communities
in New Jersey and which involved some five thousand APL volunteers and
operatives, police, soldiers, and Bureau of Investigation agents under whose
direction the “raid” had been organized and executed. The resulting detentions
sparked a furious uproar that eventually forced the Attorney General to admit that the Bureau had exceeded not only the procedural constraints imposed by his
Department, but also its authority under the law.79 Still, Gregory refused to
condemn the APL publicly or to sever the Bureau’s ties with its local chapters.
The 1918 “slacker raids” reignited a debate within the Administration over
the extent to which the federal government should go in assuming control over all
aspects of the nation’s preparation and conduct of the war. Though the
arguments on both sides of the issue reflected similar concerns respecting the
degree of federal supervision over other aspects of the war-effort, they tended, at
least initially, to focus on the Department of Justice’s use of the APL and other
similar organizations to attend to federal security concerns at the local level.
Often led by the more prominent citizens in the local communities in which it was
most active, the APL, by means of its extensive network of near autonomous
79 Gentry, J. Edgar Hoover: The Man and His Secrets, 72.
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chapters and the facility with which it could enlist the aid of local and state
officials,80 had begun to exercise a degree of influence in the government’s
policies toward alleged acts of disloyalty, ranging from draft evasion to the activities of radical labor, that was proving increasingly troublesome. The real
problem that the APL’s membership presented to the Administration was not so
much its overzealousness or even the abuses it occasionally perpetrated,81 but
rather how indispensable it and other patriotically motivated organizations and
associations had become as visible symbols of the public’s participation in what
the Wilson Administration both perceived and promoted as a popular undertaking
against the forces of tyranny and brutal repression abroad.
If, as John Higham has suggested, the initial acts of “oppression and reprisal” that were caused by organized groups of citizens such as the APL
reflected a growing impatience with the federal government’s uncertain, almost
“timid” handling of their rising security concerns,82 they were also completely
consistent with older “tradition[s] of citizen vigilance” that “made Americans the guardians of the moral welfare of their fellow citizens” and thus far more
accepting of the legitimacy of a “collective policing” that sanctioned the use of coercion for the maintenance of social order or the defense of one’s nation.83
Many of the participatory traditions of local government were, under such
80 Donner, Protectors of Privilege, 36; Kennedy, Over Here, 68-69. 81 Even the Illinois State Bar Association, as conservative and staid an organization as any to be found in those troubled times, readily succumbed to the public mood when it condemned ”as unpatriotic and unprofessional” any of its members who were willing “to accept a draft resister as a client.” Kennedy, Over Here, 78. 82 Higham, Strangers In the Land, 109. 83 Christopher Capozzola, “The Only Badge Needed Is Your Patriotic Fervor: Vigilance, Coercion, and the Law in World War I America,” The Journal of American History 89, No. 1 (March 2002): 1354-1382, 1356-1359.
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circumstances, given a new and expanded meaning by the First World War and
were, like the actions of the federal government, frequently guided by the force of public opinion. Where that opinion coalesced around the treatment of dissidents
or of those who were reluctant to conform to the expectations and political
sentiments of the larger community, most citizens did not hesitate to resort to means other than those commonly associated with their local institutions.
Clearly, “the wartime context mattered. Calls for citizen vigilance raised the
demand for volunteer policing, and wartime rhetoric and fear of subversion
heightened its significance” in much the same way that the “vigilance” groups’
growing collaboration with the agencies of government enhanced their authority and “blurred the line between mobilization and social control.”84 In this respect,
the official view of such organizations as the APL and of their value as tangible
evidence of the public’s support and direct involvement in what was clearly a
national emergency was consistent with both the majority’s opinion regarding the
obligations of citizenship and the federal government’s somewhat decentralized
approach to mobilization.
To achieve the goals of its mobilization program, the government, in order
to meet the extraordinary demands for a more efficiently functioning economy
and an increased scale of production, was strongly inclined to look beyond its
own bureaucratic structure to the cooperation of the private sector, relying variously upon incentives, subtle pressure, and the influence of trade, business,
and industrial associations to achieve its economic objectives. Shortly after the war had begun, however, it became increasingly obvious that the national
84 Ibid., 1361.
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commissions that were established to coordinate the nation’s wartime
preparations, the Council of National Defense and the War Industries Board,
were not up to the task, thus leaving the President with a serious dilemma.
Possessing deep founded reservations regarding the growth of government
power and the potentially disruptive social and political consequences of the
nationalization of American life, Wilson was, nevertheless, finally compelled to
acknowledge the “inevitability and inexorability of the rapidly broadening
functions of government.” Though equipped with extraordinary powers with which to organize and distribute the nation’s commodities, to control its means of
production, and to regulate private industry, the President remained determined
in his resolve not to create a bureaucratic structure that would tend to perpetuate
the powers that he had been granted beyond the duration of the conflict that had
made their delegation so necessary in the first place.85 His attitude was
generally shared at the highest echelons of the government. Secretary Baker, for example, who, like the President, had become concerned that the local councils
of national defense were falling under the control of the Democratic party’s
political opponents, decided against taking any remedial action, in great part
because the councils “made it unnecessary to create federal machinery at the
local level and served as the ‘guardians of civilian moral’” in their respective
districts.86 Such sentiments were in evidence in much of the decision-making in
85 Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence: University Press of Kansas, 1994), 125-127; William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legality, 1889-1932 (New York: The Bobbs-Merrill Company, Inc., 1996), 180; Lynn Dumenil, The Modern Temper: American Culture and Society In the 1920s (New York: Hill and Wang, 1995), 21. 86 Beaver, Newton D. Baker and the American War Effort, 217.
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which the government had become engaged since the outbreak of the war,
influencing considerations relative to the nation’s security and the restrictions that
were made applicable to federal law enforcement activity. It is hardly surprising
that one of the more convincing arguments that Attorney General Gregory advanced on behalf of the APL was that its dismantling, given the value attached to its work, would not only require the government to replace it with a force of
equivalent size, but also to become more actively engaged in the affairs of the
nation’s numerous and diverse localities.87 In the end, considerations respecting
the continued maintenance of social order and national unity would prevail over
the possible advantages that could be realized through the establishment of
greater bureaucratic control and centralized direction.
The First World War signaled the beginning of the end of a process of law
enforcement that had long been dominated by private and community methods
for the preservation of public order. The nation’s experience with collective
policing, its capriciousness and its tendency to operate beyond the realm of law
and procedure, as a by-product of its wartime mobilization became the catalyst
for change, leading to a reformulation of long-standing concerns regarding the
role of the police and the legal system in the suppression of crime and other
forms of anti-social behavior. But widely felt inhibitions regarding any further
engagement of the federal government in this process were strengthened
following the conclusion of hostilities and by the public’s fervent desire to
distance itself from the constraints that had been imposed as a result of the
nation’s wartime emergency. In the decade that followed, the nation would
87 Jensen, The Price of Vigilance, 41.
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discover that in the absence of a national police force, ‘there [was] no substitute
under the federal system for the failure of local law enforcement responsibility.
There [was] simply a vacuum” that could be rarely filled and then only “with
extraordinary difficulty and in totally unsatisfactory fashion.”88
88 James T. Patterson, Grand Expectations: The United States, 1945-1974 (New York: Oxford University Press, 1996), 447, quoting Burke Marshall, Assistant Attorney General during the presidency of John F. Kennedy.
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PART III
THE RESILIENCY OF FEDERALISM
Chapter 7
CRISIS AND REALIGNMENT
By 1920, . . . about as much official coercion as the United States would tolerate had been undertaken; for some time to come further attempts to impose internal conformity would rest more comfortably in private hands. John Higham, Strangers In the Land1
With the war’s end in November, 1918, the unease with which Americans traditionally regarded any extension of federal authority quickly resurfaced. The rhetoric of wartime patriotism had done little to dispel the nation’s deeply rooted and historical antagonism toward centralized power, nor had it necessarily been intended to. The federal government itself had indicated as much in the way it had handled the major initiatives associated with its preparations for war, in particular, the deliberate pace at which it mobilized the nation’s industrial might, the political sensitivity with which it acquired the manpower needed to meet the demands of modern warfare, and the way in which it administered the economic and social controls it imposed upon virtually every important aspect of public life. In facing such challenges as these, national leaders, including the President, remained as concerned about safeguarding traditional political and economic institutions as they had been with prosecuting the war. Even as they struggled to address, though not always successfully resolve, what were extraordinarily complex and unprecedented administrative, organizational, and production problems, they did so without any real enthusiasm for a permanently enhanced federal power.
Despite the potential the federal government had demonstrated as an effective
1 John Higham, Strangers In the Land: Patterns of American Nativism, 1860-1925 (New York: Atheneum, 1985), 300.
305 instrument of governance, Americans refused to abandon their faith in limited government or their deep emotional commitment to localism and private initiative, ideals that had been left virtually untouched by the wartime themes of national unity and individual sacrifice.
Peace in and of itself, however, could not immediately improve the nation’s prospects for tranquility and social harmony, no more than it could guarantee the restoration of a simpler and far more nostalgic version of American life. Despite the changes it had helped to initiate, the First World War proved to be little more than a temporary distraction from the social turmoil that had characterized the prewar years.
Now free of the discipline imposed by the exigencies of war, these pre-war tensions would return with a renewed strength, laying bare a whole new set of realities that left the nation’s citizens increasingly vulnerable to cultural and social divisions for which they were emotionally unprepared. Adding to such anxieties, which were compounded by the difficulties of economic adjustment, a growing recession, and the removal of wartime commodity controls and which were driven by a growing hostility to organized labor and in the tensions that had risen as a result of the massive, war-induced migration of Afro-
Americans to the nation’s cities, was a sharp rise in labor unrest.
Restoring “Order” Amidst Post-War Tensions
In the years prior to the First World War, many of the nation’s communities had struggled to establish, often in the name of reform, the kinds of political and social frameworks that would allow the different and mutually antagonistic groups that comprised their populations to more peacefully accommodate one another. The changes that were made and the arrangements that evolved were intended to moderate the tensions, those of ethnicity and class in particular, that invariably arose from contact between these groups. The need for a workable system within which public policy could be implemented and public affairs more efficiently managed, however, remained acute,
306 reaching crisis proportions by the turn of the century. This crisis was exacerbated, in large part, by the great numbers of newly arriving immigrants then filling the nation’s cities. Accompanying the changes that the presence of these newcomers – and their institutions, language, and culture – set in motion were the effects of economic and social forces that threatened to undermine the nation’s predominant social order, placing beyond the reach of many of the native born that vision of a secure and respectable life to which so many of them aspired. The political conflict and economic strain that resulted, undoubtedly aggravated by a deepening resentment of the immigrants’ cultural
influence and its implicit rejection of more familiar or traditional standards, did much,
therefore, to increase the likelihood of a serious and violent backlash. The war, while
setting the stage for the great changes that seized the nation’s economy in the 1920s –
its accelerated pace of investment and capitol growth, increased productivity and
manufacturing, innovation in marketing, and mania for consolidation and merger2 - thus became the context within which the struggle to impose a consensus regarding the nation’s fundamental values and identity became greatly re-energized.
War-time concerns regarding the loyalty of the foreign born struck at the heart of this fragile network of carefully cultivated political and social relationships and upset the process, a tenuous one at best, by which local institutions, political leaders, and private organizations had been able to maintain order. Carried forward in an atmosphere of intense patriotism and wartime urgency, these communities found themselves compelled to look beyond the reach of local resources and citizen groups to their state governments and a newly empowered federal government for assistance in meeting the threat of disloyalty and subversion, a choice that weakened their autonomy as governing
2 Ellis W. Hawley, The Great War and the Search for Modern Order: A History of the American People and Their Institutions, 1917-1933 (New York: St. Martin’s Press, 1974), 81-86; William Leach, Land of Desire: Merchants, Power, and the Rise of a New American Culture (New York, NY: Alfred A. Knopf, 1993), 340-341.
307 bodies and left them far more susceptible to a greater degree of social conflict and division against which they had few, if any, real defenses. Those signs of cultural disunity and social turmoil that resurfaced in the immediate postwar period would, therefore, not only prove exceptionally difficult to contain, but would also test the methods upon which local and state governments customarily relied to preserve the peace.
Prior to the 1920s, the enforcement of law had been dominated by private and community-based approaches to the maintenance of order. The police were not so much a distinctive body as they were a part of whatever political faction controlled their administration and performance. The prevailing concept of policing was, as a result, relatively informal and closely linked to the community’s shared values and ideals, the preservation of an established social order being foremost among them. The nation’s urban police in particular accepted uncritically the basic moral truths and fundamental democratic propositions that together formed the cultural consensus within which they operated and which underscored their status as enforcers of the peace. The prevailing concept of policing, therefore, rested upon a fundamental assumption regarding the kind of society the police served, that is, the right and power that rested with its “true” citizens to administer the law in any manner that reflected and was consistent with the will of its people. In such a society, the role of the police was more widely understood as involving the community’s ongoing effort to constrain the more criminally inclined citizen who, for whatever reason, was predisposed to violating society’s standards – its conception of social “sin.” As the enforcement arm of that community, the police were provided with a relatively free hand to arbitrarily exercise the community’s authority in the cause of preserving its societal values and democratic principles, to deal directly with those who, as members of a suspect class, might act beyond the bounds of what society would tolerate or its rules allow. Even the experience of war, which had temporarily
308 expanded their operational horizons, left the police’s basic understanding of the underlying purpose and overall approach to policing unaffected: they could still draw confidence and even some comfort from the their historical and widely accepted role in the suppression of “criminal unrest and political agitation.”3
In concert with the federal government’s security agencies, the police had served as “guardians not only of public order but of the safety of the Republic.”4 Yet even as the war came to an end, the threat to public order, as exemplified by the growing militancy of labor and the resumption of radical agitation, seemed to be intensifying. For many of its citizens, the nation was faced with a choice between accepting the threat of chaos and resorting to greater, though hardly unprecedented, repressive measures. Given the postwar climate of fear and reaction, the efforts of the police and the federal government to suppress radical dissent and militant unionism seemed entirely defensible. “The appeal of suppression,” Paul Murphy wrote, “had economic and status overtones to a great many Americans who would not themselves have actively moved to set up repressive machinery, but who could easily be shown its relevancy to their situation and the desirability of supporting it.”5 By 1920, the nation’s unions were either in retreat or pursuing a more conservative course of accommodation. However, the law and order mentality which had encouraged and been stiffened in turn by the suppression of
“foreign inspired” radicalism and criminality, while undiminished in fervor and unchanging in mood, continued to evolve and in ways that would have enormous implications for federal (and local) policing.
3 David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University press, 1980), 78-79, and Michael Kazin, The Populist Persuasion, An American History (New York, NY: Basic Books, 1995), Chapter 1. 4 Frank Donner, Protectors of Privilege: Red Squads and Police Repression In Urban America (Berkeley: University of California Press, 1990), 36. 5 Paul L. Murphy, The Meaning of Freedom of Speech: First Amendment Freedoms From Wilson to FDR (Westport, CN: Greenwood Publishing Company, 1972), 29.
309
In the 1920s, crime and crime control became important political issues, the result, for the most part, of the public’s growing determination to achieve a greater measure of social control through the force of law. Deeply disturbed by the changing character of their communities, Americans resorted to exaggerated images of crime and other behavior for which they had little tolerance to denounce society for its failure to ensure the predominance of older values and customs.6 Behind such concerns was the fear that the social order upon which they relied was simply not equal to the task of meeting the challenges posed by a “modern” culture whose influence was becoming ever more pervasive and whose promise of personal fulfillment was proving both powerful and increasingly irresistible. Similar in consequence was the widespread confusion and division people experienced over social and cultural issues that aroused ethnic and religious sensitivities, reenergized concerns regarding the presence of so many of the foreign born, and incited efforts to check ethnic influence in both government and local enterprise. Local business associations joined together to pressure for regulatory action against their foreign-born competitors, church groups organized campaigns against vice and offensive entertainment, and average citizens, reflecting mainstream racial and ethnic attitudes, enrolled by the thousands in the reconstituted Ku Klux Klan and a multitude of fraternal organizations to defend their communities from this assault upon traditional values.7
Among such people prohibition, though meaning many things, offered the promise of a better and more orderly future. From the moment in December, 1917, when Congress submitted the Eighteenth Amendment to the states for ratification, prohibition became a major political force on both state and federal levels of
6 Paula Fass, The Damned and the Beautiful: American Youth In the 1920s (New York: Oxford University Press, 1977), 47. 7 Leonard J. Moore, “Historical Interpretations of the 1920’s Klan: The Traditional View and the Populist Revision,” Journal of Social History 24 (Winter 1990), 346-347.
310 policymaking. From its inception, prohibition had become entangled with concerns unconnected to alcohol or its social effects, issues that were more closely related to what has been described as questions of “cultural dominance and political supremacy.”
As a national issue, prohibition tended to “transcend the mere medical or social” arguments advanced on its behalf and assumed, among its most avid supporters especially, the “character of a religious crusade,” a dimension that gave its enforcement an especially vital and portentous significance.8 Irrespective of such origins, however, by
1923, it had become increasingly clear that prohibition was failing. The debate that had arisen over its continued enforcement became increasingly bitter and acrimonious, widening the distance between those who argued that it was an unenforceable and inappropriate national policy and those who believed it essential to the preservation of the nation’s social values and political principles. Born of such cultural conflict and frustration, the controversy over prohibition and the disillusionment it caused would soon envelop those responsible for its enforcement and result in a continuing and broad- based assault upon the methods and structure of American policing.
The Red Menace and the Policy of Expediency
The wave of unemployment and rising inflation that followed the end of hostilities in November, 1918, signaled the beginning of a year or more of labor and racial strife that sorely tested the policing capabilities of the nation’s communities, both large and small. Workers by the thousands protested the reduction of their wages, determined to resist any encroachment upon the gains they had achieved during the war. Many of these same laborers, however, shared with the general public mounting concern regarding the resumption of immigration to the United States. They were particularly resentful of the presence of large numbers of Afro-American workers and their families
8 Robert K. Murray, The 103rd Ballot: Democrats and the Disaster In Madison Square Garden (New York: Harper & Row, Publishers, 1976), 9.
311 whose migration from the south had been spurred on by the demands of increased wartime production and from whose expanding, but socially isolated and increasingly jobless ranks a growing force of strikebreakers could be more readily drawn.9 As labor grew increasingly militant and more inclined to resort to demonstration, boycott, and the strike to express its discontent, the nation’s business organizations, together with local civic organizations, the latter drawing upon their wartime roles as the guardians of order, adopted various strategies of retaliation to eliminate the gains made by the workers during the war and to stigmatize their demands as further evidence of labor’s disloyalty and radical bent. The latter was a clear and deliberate attempt to denigrate labor’s record of relatively unenthusiastic and lukewarm support for the government’s wartime policies and to direct attention to the large numbers of foreign born who comprised a significant portion of the unions’ overall strength.
The status of organized labor during the war had been an uncertain one at best, resented on the one hand for its success in obtaining official recognition of its status as a legitimate bargaining agent for large segments of the nation’s industrial workforce and appreciated, if somewhat warily, on the other, for its cooperation in preventing any significant disruption of the government’s wartime production program. Labor’s gains, however, had been accomplished during a state of emergency when the government stood ready to use its power and prestige to preserve industrial “harmony,” and businessmen, made mindful of their patriotic duty, were given little choice but to meet these expectations. With the end of the war, these constraints were removed, and the nation’s employers, taking advantage of the rising hostility toward immigration and immigrants and the public’s hardening attitude toward organized labor,10 began to
9 Murphy, The Meaning of Freedom of Speech, 29; Eric Foner, The Story of American Freedom (New York: W. W. Norton & Company, 1998), 172-174. 10 Darrell H. Smith and H. Guy Herring, The Bureau of Immigration: Its History, Activities, and Organization (Baltimore, MD: The Johns Hopkins Press, 1924), 30-31.
312 pursue more forceful measures to restore the status quo in employer-employee relations. Among the first to show signs of organized resistance were the members of the nation’s “basic industries,” among them the textile and garment workers, the majority of whom were recent immigrants.11 In February, 1919, Seattle’s great shipyards were
closed as a result of a strike that precipitated the closure of most of the city’s businesses
and public transport by workers sympathetic to the strikers’ aims. This demonstration of
labor’s solidarity was strongly resisted by the city’s employers who quickly organized
themselves in order to break the unions’ influence over their respective workforces and
to eliminate the closed shop agreements they had negotiated during the war.12 Drawing parallels between the strikers and the Russian revolutionists, city officials, with the employers’ encouragement and financial support, assembled and deputized hundreds of volunteers to reinforce the police, and openly pledged to use this force and all other means at their disposal to break the strike.13
Seattle's experience with social upheaval and labor strife was repeated elsewhere, though not always on such a scale, a trend that was largely attributable to demographic developments that had been in the offing since the turn of the century.
The war had accelerated the nation’s gradual shift in population from farm to city, increasing, inn the process, the overall pool of workers, unskilled and semi-skilled, living in the nation's industrial centers. Predominantly of older stock, these migrants from the nations small towns and rural areas were forced to accept intermittent employment and low wages, contend with insufficient and inadequate housing, and adjust to the reality of limited opportunities for advancement, all conditions that contributed to increasingly hostile feelings toward the immigrants with whom they were competing and the growing
11 Higham, Strangers In the Land, 225. 12 Robert K. Murray, Red Scare: A Study In National Hysteria, 1919-1920 (Minneapolis: University of Minnesota Press, 1955), 63. 13 Eliot Asinof, America’s Loss of Innocence (New York, NY: Donald I. Fine, Inc., 1990), 130-131, 135.
313 number of Afro-Americans who were moving from the South and establishing a foothold in the North's industries. Disputes over housing, public transportation, and even recreational facilities became unremitting sources of conflict, which, in combination with noticeable changes in the composition of the city's population, led to intense racial antagonism and to the "informal, but impenetrable barriers" that made possible the violence that erupted in 1919 in more than two dozen of the nation cities, including its capital.14
Superimposed on these developments was a pervasive and ill-defined fear of
Bolshevik or communist subversion, a climate of suspicion regarding the growing
presence of the "red menace." In Seattle, as the strike progressed, the worker’s motives
and organizations were often disparaged, but more worrisome was the growing popular
view that the strikers and their sympathizers were a portent of the approaching
communist revolution.15 The wave of unrest that followed the Seattle general strike, and
which found expression in boycotts, strikes, and outright violence, touched the lives of
many of the nation’s citizens before reaching an apex of a sort in a massive walkout
among the nation’s steelworkers, many of whom were immigrants and, therefore, or so it
was widely believed, more susceptible to foreign influence and revolutionary
ideologies.16 John Higham has suggested that the "martial spirit of 1918" was reinforced
by a "new creed,” which called for absolute loyalty and offered, in return, an illusory,
though vibrant sense of national community or common purpose, a perception that likely
shaped the nation's reaction to this radical ferment and brought about what he would call
14 Kevin Boyle, Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (New York: Henry Holt and Company, 2004), 94-99; Bennett M. Rich, The Presidents and Civil Disorder (Washington, D.C.: The Brookings Institution, 1941), 152-158; Wyn Craig Wade, The Fiery Cross: The Ku Klux Klan In America (New York: Simon and Schuster, 1987), 151; Stanley Coben, "A Study In Nativism: The American Red Scare of 1919-20," Political Science Quarterly 79, no. 1 (March 1964), 62-63. 15 Melvyn Dubofsky, We Shall Be All: A History of the Industrial Workers of the World (Chicago: Quadrangle Books, 1969), 453. 16 John Morton Blum, Liberty, Justice, Order: Essays On Past Politics (New York, NY: W. W. Norton & Co Inc, 1993), 118-119.
314 the "Big Red Scare."17 If, in fact, this is an accurate depiction of the root causes of the red scare, what then becomes clear is that the influence these forces had upon the adjustment and development of the federal government's criminal justice policy, in light of what there has been recorded of it, was characteristically slow in evolving, incomplete in its development, and of relatively short duration.
The Justice Department's intervention in anti-radical activities had originally been framed and driven by its war-time investigation and prosecution of dissidents and suspect organizations such as the Industrial Workers of the World. It's response to the growing "red scare” was, by contrast, far more constrained, the result of both the postwar contraction of federal criminal jurisdiction, specifically, the expiration of the
Espionage and Selective Service Acts, and the loss of many of its war-time functions, which had resulted in the departure of key personnel and in the disbandment, early in
1919, of the Department's War Emergency Division.18 Attorney General Gregory,
perhaps anticipating his departure from government service, had been reluctant to
address the growing demand for federal action, choosing instead to leave the matter in
the hands of his replacement, A. Mitchell Palmer. Palmer had once been a member of
the House of Representatives and was then serving as the director of the Justice
Department’s Office of Alien Property.19 Prior to the war, he had occupied a place within
a close circle of political advisers who had largely been responsible for Woodrow
Wilson's nomination for the presidency, but his fierce ambition, which had become
increasingly transparent, and his tendency to take matters into his own hands
irrespective of any legal constraint made Wilson increasingly wary of the man who,
notwithstanding such concerns, would eventually assume the role of the President's
17 Higham, Strangers In the Land, 222-224. 18 Gentry, J. Edgar Hoover, 74; Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, NY: Viking Press, 1956), 149-151. 19 Nancy V. Baker, Conflicting Loyalties: Law and Politics In the Attorney General's Office, 1789- 1990. (Lawrence: University Press of Kansas, 1992), 110-119.
315 principal legal adviser.20 Like his predecessor, Palmer was hesitant to make the threat
of domestic violence, beyond the need to employ military force to suppress urban rioting,
a matter of priority in his Department’s operation, preferring instead to allow events to
take their course. It wasn’t until June 2, 1919, when bombs mailed to the residences of
several business leaders and high government officials, Palmer included, resulted in the
destruction of property in nine cities and two deaths, that the Department began to give
serious attention to the threat of nationwide violence and terrorism,21 a move widely applauded by the growing number of local chambers of commerce, journalists, state legislators, and others who had become increasingly impatient with Palmer’s inaction and had been pressing him to take steps to more directly and vigorously "confront the radical menace.”22
Prodded into action, Palmer replaced the head of the Bureau of Investigation and
established a new division, the General Intelligence Division, to coordinate the increased
number of investigations and related prosecutions that were expected to arise as a result
of the government's stepped-up campaign against radicalism. Appearing before the
House Appropriations Committee shortly after the bombings, the Attorney General made
an urgent appeal for an increase of half of a million dollars over and above that which he
had previously requested to enable the Department to pursue indictments of those
responsible for the more recent violence. The size of the supplemental appropriations
requested, however, gave the Appropriations Committee reason to reconsider. The
scope and intensity of the local investigations that had been launched in reaction to the
bombings were such as to convince the Republicans on the Committee that the
Department's request would only serve to duplicate the what were seen as the more
20 Baker, Conflicting Loyalties, 114-115. 21 James Lardner and Thomas Reppetto, NYPD: A City and Its Police (New York: Henry Holt and Company, 2000), 186-189; Fred J. Cook, The FBI Nobody Knows (New York: The Macmillan Company, 1964), 87-88. 22 Murray Red Scare: A Study In National Hysteria, 195-196.
316 effective efforts then underway, making the request both wasteful of public funds and unnecessary. This unexpected reaction encouraged Palmer and the Intelligence
Division's director Francis P. Garvan to pursue a very different and far more alarmist approach in the Senate where the Attorney General, Garvan, and William J. Flynn, the newly appointed head of the Bureau of Investigation, provided more detailed explanations of the need for additional funding and attempted by elaborating on the international character of the threat to the nation’s security to justify federal involvement.23 Amidst rumors concerning a widespread conspiracy to undermine the
nation's government by means of random terrorist acts and revolution - the result, quite
possibly, of an especially inflammatory article that appeared in one of the May editions of
the New York Evening Mail24 - the Department succeeded in wresting from Congress the funds it needed to restore its manpower allocation and operational budget to previous or war-time levels, an achievement that lent further credence to the rumors then circulating and encouraged local police officials to mobilize their resources in anticipation of the worst possible scenarios.25
By late summer, however, criticism of the Attorney General's failure to achieve more decisive results in meeting the imminent threat of radicalism had become especially relentless. Palmer, pressured by Congress to explain why his Department had not moved more aggressively to counter a threat which he had done so much to inflate, bitterly complained that he had been hamstrung by the jurisdictional limitations of federal criminal law. Given the present state of the federal criminal code, he wrote, he simply lacked the means to ensure the conviction of anyone advocating the violent
23 Donner, Age of Surveillance, 33; Richard H. Frost, The Mooney Case (Stanford, CA: Stanford University Press, 1968), 331-332. 24 Frost, The Mooney Case, 331-332. 25 Stanley Coben, A. Mitchell Palmer (New York: Columbia University Press, 1963), 211.
317 overthrow of the government.26 The Department’s efforts to resurrect Section 6 of the federal code, an anti-conspiracy provision enacted during the Civil War, had been frustrated, he argued, by recent court rulings, which made the Espionage Act of 1917, as amended in 1918, its only recourse. But this provision, he noted, was simply not available to the Department since its application to peace-time cases was, he strongly believed, constitutionally suspect. What was needed, Palmer urged, was entirely new legislation that would remove the jurisdictional barriers and produce a measure that, unlike the war-time statute it was intended to replace, would be applicable not solely to conspiracies, but to individual acts as well.27 Despite such pleas, the legislation Palmer asked for was never forthcoming, a disappointment that left the Attorney General convinced that the Department's criminal law jurisdiction, burdened by the constraints of its procedural rules was an ineffectual instrument for achieving his objectives. Under such circumstances, the Attorney General finally concluded, the Department had no recourse but to pursue an alternative strategy somewhere else within the government’s bureaucratic machinery.
As early as June of 1919, officials in the Justice Department had begun to consider the use of deportation as a more appropriate device with which to target the advocates of political violence. That such an approach would effectively limit the implementation of the Department's anti-radical policy to those persons who were subject to the nation's immigration laws was, given the strong stereotypical association
26 Murray Red Scare, 195-196; Elizabeth Stevenson, Babbitts and Bohemians: The American 1920s (New York, NY: The MacMillan Company, 1967), 59. 27 A. Mitchell Palmer, Investigation Activities of the Department of Justice; Letter From The Attorney General In Response To A Senate resolution of October 17, 1919 (Washington, D.C.: Government Printing Office, 1919), 6-8. The statute in question banned two or more people from conspiring to overthrow the government by force or violence. The Act was ineffective as a prosecutorial weapon in every other respect because it could not be employed against an individual. When, as Palmer was to advise Congress, members of the El Ariete Society, a Spanish anarchist group in Buffalo, New York, were prosecuted under its provisions, the charges were dismissed by a federal judge who believe a clear distinction had to be made between an actual conspiracy and a mere attempt to “propagandize” the group’s political beliefs.
318 that linked the immigrant to revolutionary ideologies, of only small concern. Attorney
General Gregory had himself proposed, prior to his resignation from the Cabinet, to deport some 7000 "troublemakers,"28 a plan that had been largely ignored because of the risks to which the Department would have been exposed by relinquishing any control over the matter to the Department of Labor. On the other hand, deportation offered two distinct advantages over the Justice Department's limited jurisdictional authority: first it was an administrative action, one which did not entitle those against whom it was initiated any of the constitutional safeguards found in the criminal law process.29 Second,
it would allow the Justice Department’s agents, on the basis of association alone, to
carry out mass arrests and to deport those whom they had specifically targeted. In
1892, the Supreme Court had designated the expulsion of "undesirable aliens" a
“sovereign” right, but Congress had failed to specify the procedure by which the nation's
deportation laws were to be enforced. As a consequence, the Department of Labor,
which had been made responsible for the implementation of the nation's immigration and
exclusion laws, assumed control over this function, treating the matter as it did all
questions regarding exclusion, that is, as part of a larger administrative process over
which it exercised complete discretion.30 From that point on, the Labor Department’s
jurisdiction over deportation would never again face serious challenge. Blocked from
pursuing its anti-radical policy objectives in the courts and desperate to resolve its
28 Richard Gid Powers, Secrecy and Power: The Life of J. Edgar Hoover (New York: The Free Press, 1988), 69. 29 “The proceedings before a United States judge . . . [are] in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the contrary. The order of deportation is not a punishment for crime. . . . . He has not, therefore, been deprived of life, liberty, or property, without due process of law; and the provisions of the Constitution securing the right of trial by jury, and prohibiting unreasonable searchers and seizures, and cruel and unusual punishments, have no application.” Fong Yue Ting vs. The United States (1893) 149 U.S., 698, 730 30 William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legality, 1889- 1932 (New York: The Bobbs-Merrill Company, Inc., 1996), 214; Francis F. Kane, "The Challenge of the Wickersham Deportations Report," Journal of Criminal Law and Criminology 23 (Nov.-Dec. 1932): 579-613, 579.
319 dilemma, the Justice Department gradually concluded that the deportation process, as
Palmer later explained, offered the “only means at [its] disposal . . . of attacking the radical movement.”31 Given assurances that he would receive the Bureau of
Immigration’s cooperation, Palmer’s associates busied themselves with their
preparations for the first of two coordinated raids that would dramatize the Justice
Department’s anti-radical mission and demonstrate its determination to neutralize the
threat of politically motivated violence. Toward these ends, however, the Labor
Department, of which the Bureau of Immigration was now a part, would prove to be a
very reluctant and uncertain ally.
The government official responsible for overseeing the nation's deportation
process was none other than the Labor Department's first secretary William B. Wilson, a
former congressmen who, despite his prior service as an officer of United Mine Workers
Union, had roundly condemned the strikes that became such a defining feature of the
early postwar era as "the results of a deliberate, organized attempt. . . to establish Soviet
government in the United States."32 It came as no surprise, then, that the instructions
sent to the Department's immigration officials and inspectors in July, 1919, directed
attention to the threat posed by "alien radicalism" and lay the groundwork for the
Immigration Bureau’s subsequent cooperation with the Department of Justice. Both
during and following the end of the First World War, Bureau inspectors had been closely
aligned with the Justice Department's field agents in the investigation of the activities of
the IWW throughout the western regions of the United States. This record of inter-
agency cooperation, though brief in duration, had been forged during a time of national
crisis and reinforced by a shared sense of mission. As such, it provided the basis upon
which the agencies’ coordination of their planned operations and detentions could
31 A. Mitchell Palmer, Investigation of the Activities of the Department of Justice, 9. 32 Eliot Asinof, America's Loss of Innocence (New York: Donald I. Fine, Inc., 1990), 144.
320 actually proceed and yet remain legally valid.33 In November, just days before Palmer again appeared before Congress to renew his request for a peacetime sedition bill, the
Justice Department, with the assistance of local police and immigration officials, conducted raids in twelve cities, detaining and interrogating hundreds of people who were believed to be members of the Union of Russian Workers. The first of two raids conducted under the direction of the Justice Department and a dress rehearsal for the much larger raid to follow, the Department’s initial effort met with considerable public approval despite the injustices that were committed and the relatively few detentions that resulted in actual deportation.34
In mid-December, Wilson, who had taken a temporary leave of absence to attend to his gravely ill wife, resumed his responsibilities as the Secretary of Labor, discovering, in the process, that the Justice Department, enmeshed in feverish preparation for the second raid, had submitted an appallingly large number, more than 3000, of arrest warrants for his signature. To Wilson and his immediate subordinates, the request was simply staggering, not only because it posed such a serious challenge to the Bureau of
Immigration’s administrative capabilities, but also because it raised questions, given the insufficiency of supporting evidence that accompanied each of the warrants, regarding the legal validity of the Justice Department's detention practices. The Department’s strategy rested wholly upon the proscription provisions of the Immigration Act of 1918, which made membership in any organization dedicated to the violent overthrow of the government or the widespread destruction of property a deportable offense. This approach made it unnecessary to gather evidence of any overt act on the part of the accused that could be charged as a violation of the law, and permitted the Department to
33 William Preston, Jr., Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 (Urbana/Chicago: University of Illinois Press, 1963), 208-210, 211-212. 34 Gentry, J. Edgar Hoover, 83; Cook, The FBI Nobody Knows, 97; Donner, Protectors of Privilege, 40-41.
321 proceed against those whom it had targeted on the basis of their membership alone in such organizations as those against whom the raids had been mounted, the Communist
Party and the Communist Labor Party.35 To identify the organizations which could be
proscribed under the Act, the Justice Department devoted the greater portion of the anti-
radical appropriations it received to assemble within the General Intelligence Division a
small army of interpreters, analysts, and investigators who, with the assistance of the
Post Office Department, routinely monitored the contents of over four hundred
publications (half in languages other than English). Dossiers, estimated in excess of
60,000, were created in connection with both individuals and organizations suspected of
radical activities and any evidence, including membership lists or rolls seized during the
raids, that could be used to ban either under the provisions of the Immigration Act.36
Over the strenuous objections of the Bureau of Immigration and the GID, Secretary
Wilson reinstated an earlier directive that required the Bureau’s inspection or field staff to
“thoroughly substantiate personal guilt before requesting a warrant of arrest.”
Emphasizing that only he had the authority to approve the issuance of warrants in deportation cases, the Secretary quietly announced that, henceforth, a more stringent burden of proof than that of mere association would be required. Wilson’s instructions clearly threatened to undermine the preparations underway and quickly became a source of conflict between the two departments until, during yet another of Wilson’s increasingly frequent absences, the Labor Department’s acting Secretary, a Palmer appointee, substituted a new and less stringent standard of proof than demanded by the
35 Gentry, J. Edgar Hoover, 84; Donald L. Smith, Zechariah Chafee, Jr.: Defender of Liberty and Law (Cambridge, MA: Harvard University Press, 1986), 44; Preston, Aliens and Dissenters, 217- 219. 36 Palmer, Investigation of the Activities of the Department of Justice, 6-8.
322
Secretary and released all of the warrants submitted for departmental review for service.37
Palmer's attempts to secure legislation authorizing his department to deal directly
with the alien radical “problem” appear, in retrospect, to have been motivated by his
distrust of the Labor Department’s commitment to a sustained anti-radical campaign and
by Wilson's rejection of the Justice Department’s proposal to make mere membership in
the IWW a deportable offense. His criticism of the Labor Department generally and of
Secretary Wilson particularly was soon echoed by others who were similarly determined
to force the labor secretary into a more compliant posture. Growing disaffection with the
Labor Department Secretary’s interpretation of the immigration act became so intense
that even the House Committee on Immigration and Naturalization finally capitulated to
the pressure directed against it, proposing, in December, 1919, to conduct its own
investigation into the matter. The raids that followed the issuance of the warrants
prepared at the Justice Department’s direction resulted in the arrest of more than 5000
people in thirty three cities and sparked a reaction the Department could not have
foreseen. Pressured by the administrative burden and escalating costs of maintaining
so large a number of people in detention and increasingly sensitive to the growing
criticism of the more liberal press regarding the deplorable conditions to which those in
custody were being subjected, the Labor Department began to release a number of the
detainees, many on bail, pending disposition of their cases.38 Of particular concern to
Secretary Wilson and Assistant Secretary Louis F. Post were the indiscriminate manner in which the arrests had been executed and the numerous instances in which the
Department of Justice's agents had conducted warrantless and, therefore, patently
37 Nathaniel Hong, “The Origin of American Legislation To Exclude and Deport Aliens for Their Political Beliefs, and Its Initial Review By the Courts,” The Journal of Ethnic Studies 18, no. 2 (Summer 1990), 27; Preston, Aliens and Dissenters, 101-102; Gentry, J. Edgar Hoover, 90. 38 Harry Overstreet and Bonaro Overstreet, The FBI In Our Open Society (New York: W. W. Norton & Co., Inc., 1969), 43; Preston, Aliens and Dissenters, 224.
323 unlawful, searches for any documentary evidence that could justify the detentions of the very people whom they had already taken into custody.
On January 24th, only days after a subcommittee of the Senate Judiciary
Committee had begun a very public examination of the policies and practices of the
Department of Justice, Secretary Wilson added to the controversy by refusing to make membership in the Communist Labor Party a deportable offense. Wilson’s caution in the face of mounting criticism of the government’s anti-radical campaign precipitated a major public relations effort on the part of the Attorney General and his subordinates in the GID to mobilize public opinion in support of the raids.39 In March, however, amidst the
increased attention and media coverage generated by the Department of Justice’s
heated defense of its tactics and policies, the new acting secretary of the Labor
Department Louis Post canceled over 70% of the arrest warrants previously issued by
his department. Mindful, perhaps, of the federal judiciary's growing discomfort with the
arbitrariness and informality of the Department’s deportation process and of a recent
court decision rejecting any inference of guilt based on membership alone,40 Post dismissed all the remaining warrants issued in connection with the Communist Labor
Party. This decision provoked a swift and angry reaction in the Justice Department and resulted in calls for Post’s impeachment, a demand that moved the House’s Rules
Committee to investigate whether the acting Secretary's decision-making deviated from
Congress’ original intent when it had amended the Immigration Act in 1918.41
Almost simultaneously, but in sharp contrast to the concerns addressed by the
House Rules Committee, a subcommittee of the Senate Judiciary Committee, reacting
39 Cook, The FBI Nobody Knows, 167; Smith, Zechariah Chafee, 44-45; Overstreet, The FBI In Our Open Society, 44-46. 40 Ex parte Jackson (1920) 263 F. 110. 41 Smith, Zechariah Chafee, 45; Homer S. Cummings and Carl McFarland, Federal Justice (New York: The Macmillan Company, 1937), 430-431; Gentry, J. Edgar Hoover, 97; Overstreet, The FBI In Our Open Society, 44.
324 angrily to the scope of this latest raid and reports of alleged abuses perpetrated by the federal agents involved, convened an investigation of its own. The Committee, under the chairmanship of Senator Thomas Walsh of Montana, no friend of the Justice
Department, was a significant contributor to the growing perception of the Department as an agency that had acted well beyond its legal and constitutional boundaries, a view supported somewhat ironically by the testimony the Committee had elicited from the
Department's own agents and prosecutors. Ordinarily, federal agents were prohibited by law from seizing evidence without a warrant and were strictly forbidden from initiating searches in the mere hope of discovering some evidence of guilt.42 Testimony before the
subcommittee not only disclosed multiple violations of these rules, but revealed, to the
astonishment of many, the extent to which the Justice Department's cases against the
detainees was dependent upon the unverified and often unreliable statements of
informants whose identities the Department simply refused to disclose and upon
evidence obtained through objectionable methods of interrogation. The threat of Post’s
impeachment and the accusations leveled at the Labor Secretary and his staff by a
Justice Department that seemed intent upon reversing Wilson’s ruling regarding the
status of the Communist Labor Party, prompted some members of Wilson’s staff to
secretly arrange for a test case to be brought before a "sympathetic" federal judge. The
hearing, initiated in response to the motions for writs of habeas corpus filed on behalf of
select group of aliens detained during the January raid, revealed, to a degree not yet
appreciated, the true nature and extent of the Justice Department's illegal conduct and
42 Max Lowenthal, The Federal Bureau of Investigation (Westport, Conn.: Greenwood Press, 1971 [1950]), 195.
325 lay bare the very real threat it posed to the American system of government and the personal liberty of its citizens.43
These troubling disclosures, when combined with the Justice Department's
ongoing and increasingly blatant effort to influence the outcome of the remaining
deportation cases through the selective release of information gleaned from in its
investigation files, inspired the Department’s most serious critics, among them the
Commission On the Church and Social Service, an arm of the Federal Council of
Churches and a growing number of such public figures as Charles Evans Hughes and
Harlan Fisk Stone, then Dean of the University of Columbia law school, to greater
effort.44 In May, 1920, Senator Walsh and his subcommittee were provided with a copy
of a report that took the Justice Department to task for its excesses and failures.
Sponsored by the National Popular Government League and bearing the signatures of
twelve eminent lawyers (including Roscoe Pound, Dean of the Harvard law school, Felix
Frankfurter, Zachariah Chaffee, Jr., and Francis Fisher Kane, the former United States
attorney from Philadelphia who had resigned in protest over the unfair treatment
accorded those who were detained during the January raids), the report described the
government’s abuses in shocking detail and offered a compelling argument against the
continuing involvement of the Justice Department in matters that fell outside of its
jurisdiction.45
43 Smith, Zechariah Chafee, 46-47; Lowenthal, The Federal Bureau of Investigation, 196-197; Peter H. Irons, “'Fighting Fair:' Zechariah Chafee, Jr., The Department of Justice, and the 'Trial at the Harvard Club.” Harvard Law Review 94, no. 6 (1981):1218-1236. 44 Preston, Aliens and Dissenters, 221; Donner, Age of Surveillance, 38-40. 45 Cook, The FBI Nobody Knows, 108; Smith, Zechariah Chafee, 48. “Report Upon the Illegal Practices of the United States Department of Justice.” The origins of this document can be traced to a joint meeting of the N PGL and the American Civil Liberties Union in Washington on April 13, 1920. Among those present was Senator Walsh who may have first suggested the idea. Smith, Zechariah Chafee, 48. ". . . the report itself cited numerous examples of the continued violation of the Constitution. The authors particularly criticized the agents' use of agent provocateurs, lack of legal authority to enforce immigration laws, warrantless arrests, and use of coerced confessions and illegal searches, as well as the inhumane conditions under which the
326
For Palmer, any recognition he had hoped to achieve from a job done well would prove fleeting and ultimately elusive. In the face of continuing, but less tumultuous social change and growing signs of industrial peace, his and the Department’s role as the nation’s “protectors” seemed increasingly out of place, if not irrelevant.46 Among
politicians of both parties, the prospect of a steadily expanding federal power had
become a matter of grave concern, a reflection of broader trends originating with an
electorate increasingly disenchanted with the war-time development of the federal
government’s bureaucratic machinery and its influence in their lives. For many local
communities and rural residents, the war-related growth of federal power – experienced
by an ever larger number of Americans in the form of regulatory controls over food,
fuels, and transportation, to say nothing about the selective service act and heavier
taxation – had introduced a degree of systematization and standardization that
threatened to curtail their traditional independence and weaken the customary governing
activities of local institutions and the political values that supported them and for which
they stood. Resisting the encroachment of federal power thus became the political
watchword of a new age, one that struck a deeply responsive chord across a broad
spectrum of interests, among them, businessmen still resentful of the government’s
interference with the nation’s economy and wartime acquiescence to the demands of
labor, people who because of their ethnicity or political beliefs had suffered from the
government’s repressive policies, and others who, because of their traditional
reservations regarding centralized power, welcomed the restoration of the more familiar
and comforting “local controls and regional distinctions” to which they were
arrestees were detained." Alan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University Press of Kansas, 2004), 27. 46 Higham, Strangers In the Land, 231-233.
327 accustomed47 As one of the first Democrats to declare himself a candidate for his party’s presidential nomination in 1920, Palmer, relying heavily upon his reputation as a defender of the nation’s security interests, thus failed utterly to detect this shift in the public mood. Palmer’s failure to exercise greater control over the Justice Department, allowing it, in effect, to co-opt enforcement of the nation’s immigration laws and to exercise those powers unfairly and arbitrarily, did much to expose a troubling lack of sensitivity on his part to the basic requirements of due process. More egregious was his shocking indifference to the abuses that had resulted from the Department’s overzealousness, a posture that shook the public’s confidence and contrasted sharply with the nation’s evolving view of the place of law in public life.
The uproar that followed the Justice Department’s foray into the realm of impermissible behavior was driven not only by issues concerning its investigative methods, but also, and perhaps more importantly, by the extent to which its actions deviated from the history of federal enforcement. The Department’s involvement in the deportation process and the abuses that had ensued precipitated a reaction that strongly reinforced the jurisdictional concerns of politicians and bureaucrats alike. Such concerns would eventually force the Department and the administrations it served to confront the questions that would be raised concerning its role and competence in meeting new threats to public order. If the election of Warren G. Harding failed to resolve these issues, it did at least offer some assurance that the new Republican administration would be far more inclined than its predecessor to resort to what the majority of the nation’s citizens regarded as more “acceptable forms of moral social control” and would likely resist the entreaties of those who were advocating for “stronger public controls” by ensuring that they would be deprived of the very means by which
47 Lynn Dumenil, The Modern Temper: American Culture and Society In the 1920s (New York: Hill and Wang, 1995), 26-31.
328 their plans could be implemented.48 Under such circumstances, the replacement of key
personnel within the Department would never, by itself, have been sufficient to sustain
its involvement in the struggle against radicalism of every stripe, a matter to which it had
devoted the bulk of its resources and manpower since just before the outbreak of the
war. The very nature of the Department’s anti-radical program, reflecting a crisis-driven,
goal-oriented, non-systematic approach to policing, provided virtually no enduring
bureaucratic machinery with which to pursue the counter-subversive responsibility it had
assumed, a situation that would have most likely invited a thorough re-examination of
the Department’s functions and objectives, but for the selection of William J. Burns, the
former chief of the Secret Service, as the new director of the Bureau of Investigation and
the nominal head of the Department’s continuing campaign against radicalism.
Neither Burns, nor the man to whom he owed his position, Attorney General
Harry Daugherty, was ever able to overcome the legislative and jurisdictional barriers
that prevented the Department from securing a place as the nation’s preeminent “radical
hunter.”49 Despite the loss of half of his field staff, a cost-cutting measure that conformed
to the new president’s vision of a less activist government,50 Burns remained convinced
of the very real threat of communist subversion and the necessity of meeting it with any
means available. He was determined to continue and to expand upon the Department’s
war-time collaboration with local police forces and other organizations, an alternative, he
48 Murphy, The Meaning of Freedom of Speech, 99. 49 On one such occasion, in March, 1922, Burns, appearing before the House Appropriations Committee, had asked the Committee to include language in the proposed appropriations bill that would have changed the customary wording regarding the purpose of the Bureau’s appropriation from “detection and prosecution of crimes” to “detection, prosecution and prevention of crime.” Aware that such a change would greatly broaden the Department’s authority, the Committee refused to consider the request. Powers, Secrecy and Power, 71. 50 There is some evidence to suggest that the Bureau of Investigation’s field force of agents, numbering in excess of 1200 toward the end of President Wilson’s second term, had been earmarked for a significant reduction of numbers at the direction of Attorney General Palmer. United States Senate. Select Committee on Investigation of the Attorney General. Investigation of Hon. Harry M. Daugherty, formerly Attorney General of the United States. Hearings. (Washington: U.S. Government Printing Office, 1924), 2459.
329 must have realized, that lay outside of the Department’s actual authority, but which could serve its needs until such time as it could obtain congressional ratification of its activities.51
In this fashion did Burns, who would make few changes in the bureau he inherited, place
the resources available to him behind the policy initiated by his predecessor, William J.
Flynn. His timing could not have been more propitious. The hysteria that had
accompanied post-war fears of radicalism contributed greatly to the formation or
enlargement of the special police or “bomb” squads upon whom the responsibility for
monitoring dissidents, harassing demonstrators, and other similar activities fell. With
close ties to local business interests and the corporate or private security agencies
serving them and granted considerable autonomy in the performance of their duties,
these special police detachments became an invaluable conduit of information for the
Department, a source that was fully exploited by the GID which, with the active
cooperation of domestically active military and naval intelligence officers, provided
occasional direction, much needed coordination in the collection and dissemination of
useful intelligence, and a broader jurisdictional reach.52
To accomplish its objectives, the Department relied heavily upon the exertions of
local authorities whose enforcement powers were drawn directly from their respective
state’s criminal syndicalism laws.53 Enacted primarily to defend political and business interests from the threat of disruption or property loss, whether as a result of boycotts, strikes, or industrial sabotage, the laws varied from state to state. They tended, however,
51 William R. Hunt, Front-Page Detective: William J. Burns and the Detective Profession 1880- 1930 (Bowling Green, Ohio: Bowling Green State University Popular Press, 1990), 163; Michael R. Belknap, “Uncooperative Federalism: The Failure of the Bureau of Investigation’s Intergovernmental Attack On Radicalism,” Publius 12, no. 2 (Spring 1982), 27, 28-29; Murphy, The Meaning of Freedom of Speech, 186. 52 Hunt, Front-Page Detective, 162-163; Donner, Protectors of Privilege, 38-39, 40-41; Preston, Aliens and Dissenters, 242; Gentry, J. Edgar Hoover, 104; Joan M. Jensen, Army Surveillance In America, 1775-1980 (New Haven, CT: Yale University Press, 1991), 184-190. 53 Annual Report of the Attorney General of the United States 1920 (Washington, D.C: Government Printing Office, 1921), 177.
330 to penalize various forms of protest, including the advocacy of “improper” beliefs, and often spawned municipal ordinances (measures punishing the distribution of literature, the unauthorized use of sidewalks, unlawful assembly, and loitering) that broadened the laws’ application. By 1920, thirty-five states had adopted “some form of restrictive legislation,” statutes that, by providing local officials with the widest discretion in their application, offered the Bureau of Investigation, with which the GID had been merged, untold opportunities to advance its anti-radical program even where the evidence generated by such cooperative arrangements could not be used in federal legal proceedings.54 The availability of local resources capable of prosecuting persons of special interest to the Justice Department or, as was more often the case, brought to its attention by local or state authorities, together with the creative use of a variety of pretexts to justify subsequent federal involvement – the prohibition act, for example – permitted federal authorities to assist their state or local counterparts in securing a number of convictions under state law, an accomplishment routinely reported to
Congress, but without any specific reference to the techniques employed.55 Under
Burns’ direction, the Bureau of Investigation provided Congress with only the barest
detail regarding its involvement in the enforcement of state sedition laws. Withheld
altogether was any information pertaining to the Bureau’s use of privately donated funds
and services from organizations as the National Civil Federation and the American
Defense League, each of which saw in the government’s intervention an opportunity to
enlist powerful allies in their confrontations with the labor agitation or political protest with
which they were so obsessively preoccupied.56
54 Murphy, The Meaning of Freedom of Speech, 47, 65; Gentry, J. Edgar Hoover, 111. 55 Lowenthal, The Federal Bureau of Investigation, 277-278; Belknap, “Uncooperative Federalism,” 28-29. 56 Frank J. Donner, The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (New York: Alfred A. Knopf, 1980), 43; Burns, the founder of one of the nation’s largest private security firms, showed no hesitation in approaching former clients, many
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In 1922, the Justice Department’s heavy-handed attempt to employ Michigan’s criminal syndicalism law against Communist Party members gathering in the town of
Bridgman met with an unexpected and vigorous defense organized on behalf of the arrested party members by the American Civil Liberties Union.
The resulting conflict between the litigants could not be confined to the courtroom and generated widespread publicity, much of it critical of the Department’s policy, which exposed the extra-jurisdictional nature of the Department’s involvement to public scrutiny. Subsequent revelations regarding the Bureau’s conduct – its use of agents and informants to collect evidence, the assurances given local officials regarding the
Department’s intention to subsidize the costs of prosecution, and the Bureau’s clumsy attempt to justify its involvement as part of an on-going investigation of illegal immigration – were so shocking as to prompt many in Congress to question the
Department’s intervention in what they perceived to be a “purely local matter.” 57 But the
issues raised by the Justice Department’s conduct in the Bridgman affair, as were those,
later that same year, growing out of its efforts to break a nationwide strike of rail and
shop workers, were soon overtaken by other, more politically charged developments that
would cast serious doubt upon the Department’s competence and integrity.
“Acting the Part of a Gentleman”
These developments had actually begun long before the death of President
Harding in August, 1923, and can be traced to the disarray and uncertainty facing the
Justice Department following the end of the First World War. In an era marked by the
growing influence of the private sector in shaping public policy and a political climate
of them industrialists, with his requests for financial contributions. He is alleged, however, to have made at least one open appeal for assistance in a speech he delivered before the Patriotic Societies annual convention in 1923. Murphy, The Meaning of Freedom of Speech, 187. 57 Belknap, “Uncooperative Federalism,” 38-43; Hunt, Front-Page Detective, 165-167.
332 made increasingly unstable by deeply felt and disruptive cultural issues, the reform coalition that had been responsible for the Department’s growing importance and the expansion of its jurisdictional authority lost both its direction and its momentum. Amidst the altered circumstances and conditions of life in the postwar era, the older and once politically irresistible agendas of progressive reform were no longer able to inspire much interest. The “rubric of the ‘public interest,’” the progressive’s profound faith in the existence of a bond that embraced all elements of American society and established a moral high ground to which all in public life should aspire, “proved an early victim of the dissolution of the progressive ethos.”58 Unable to heal the deepening fissures that were
straining their constituency, the progressives saw their influence upon the nation’s
political life weaken, the values they had once championed inexplicably disappearing
from the public sphere. Never able to resolve questions concerning the proper role of
the state and unwilling to accommodate the unending tensions and contradictions that
arose from the cultural, social, and class divisions separating the nation’s citizens, the
progressives became increasingly marginalized, undone both by a more fractious kind of
politics that would soon typify the postwar era and by an entirely new political discourse
that would be dominated by special interests and more moderate reform movements for
which the progressives felt little kinship.59
From the beginning, President Harding’s avowed intention to fill the post of
Attorney General with one of his own friends and close political advisers had been met with skepticism and disgruntled comment. Though recognized as one of the hardest working members of the Republican National Committee, Harry M. Daugherty’s reputation as a lawyer, corporate lobbyist, and a candidate for public office who had
58 LeRoy Ashby, The Spearless Leader: Senator Borah and the Progressive Movement In the 1920’s (Urbana: University of Illinois Press, 1971), 9-10, 13; William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legality, 1889-1932 (New York: The Bobbs-Merrill Company, Inc., 1996), 213. 59 Ashby, The Spearless Leader, 9-10.
333 acquired too many political enemies along the way gave even those who knew him reason to question his qualifications for the post. But Harding had made a promise – felt morally bound by it - and Harry Daugherty, despite his own doubts as to whether he could project an image befitting that of the nation’s Attorney General, was determined to use this opportunity to achieve the high status and regard that had thus far eluded him.60
The challenges that lay before the new Attorney General, however, were far more daunting than he could possibly have imagined and were made more so by his predecessor’s neglect of his administrative duties and almost total preoccupation with combating radicalism. On the very day he assumed the responsibilities of his office,
Daugherty, seemingly oblivious to the rumors of corruption and incompetence that had arisen from the Department’s failure to address growing evidence of widespread fraud in the negotiation of war-time government contracts, devoted himself instead to an entirely different set of priorities. The agenda he proposed to follow called for the expansion of the federal judiciary, stricter enforcement of the antitrust laws, and a final resolution of the increasingly sensitive issues surrounding the prosecution of “war-fraud” cases. To accomplish these goals, he felt that he would first have to restore order within the
Department, a task he sought to undertake through the appointment of a capable staff.
Like his President, Daugherty believed that the key to a successful administration lay with one’s subordinates, and toward that end he made a number of personnel decisions, among them the selection of six assistants “of varying caliber,” several of whom, as in his choices for Solicitor General, James M. Beck who had served the Department under both McKinley and Roosevelt, and for the head of his criminal division, Mabel Walker
60 Carl S. Anthony, Florence Harding: The First Lady, The Jazz Age, and the Death of America’s Most Scandalous President (New York: William Morrow and Company, Inc., 1998), 74; Samuel Hopkins Adams, Incredible Era: The Life and Times of Warren Gamaliel Harding (New York, NY: Capricorn Books, 1964), 314; Francis Russell, The Shadow of Blooming Grove: Warren G. Harding In His Times (New York: McGraw-Hill Book Company, 1968), 426-427.
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Willebrandt, were especially effective and energetic administrators, but others such as
Jess Smith and Howard Mannington who were destined to disappoint him. 61
In the year that followed his appointment, Daugherty became a target of
convenience for many people, including members of both parties, who were
critical of President Harding’s policies and especially of the Justice Department’s
handling of a national rail workers’ strike that had temporarily paralyzed the
country’s rail transportation system. The injunctions secured by the Department
to prevent interference with the railways’ operation placed the Administration squarely on the side of the nation’s corporate interests, and left the attorney general increasingly open to growing suspicions that he was acting in bad faith in not acting more swiftly to prosecute manufacturers who were believed to have cheated the government out of millions of dollars in connection with the placement of wartime orders for munitions and other war material.62 The worst
offenders were said to have been the nation’s aircraft manufacturers who were
alleged to have been paid more than one billion dollars for bomber and fighter
aircraft that were never produced or distributed to the military. Pressured to take
some action, President Wilson appointed Charles Evans Hughes to investigate
the matter, and he had recommended criminal charges be brought against
several of the principals involved. However, nothing of consequence occurred,
and the delay fed growing suspicions of collusion and improper influence,
especially among nation’s news media, the Administration’s Democratic
61 James N. Giglio, H. M. Daugherty and the Politics of Expediency (Kent, OH: The Kent State University Press, 1978), 124-125, 127, 128; Baker, Conflicting Loyalties, 119. 62 “Daugherty and His Critics,” The Independent, 108(3817) (June 10, 1922): 501-502.
335
opponents and even the more moderate elements of the President’s own party.63
What sustained these suspicions was the growing perception that the Attorney
General and the Department of Justice were involved in practices that were, by any standard, despicable and corrupt.64 Among those taking advantage of their
affiliation with the Department were the Attorney General’s personal aides Smith
and Mannington, who had done all they could to use their network of connections
throughout the administration. Acting without restraint to exploit their relationship
with Daugherty, they advanced their own personal interests by whatever means
possible, whether by brokering political appointments for a fee, selling
confiscated liquor and permits, influencing prosecutorial decisions on behalf of
clients or others willing to pay for the favor, or directing Departmental business to
acquaintances, including Daugherty’s former law partners.65 Struggling with the
complexities of the policy issues with which he was contending, receiving little
guidance from a president who preferred to have Congress determine his
administration’s agenda, and increasingly forced to absent himself to attend to
his ailing wife and son, Daugherty, who, as his own biographer was to observe,
“lacked the temperament, experience, and ability of all other Attorneys General,”
felt sufficiently overwhelmed as to believe he had no other recourse but to
63 “War Frauds and Daugherty’s Impeachment,” The New Republic 32, no. 401 (October 11, 1922): 162-163. 64 Robert K. Murray, The Politics of Normalcy: Governmental Theory and Practice In the Harding- Coolidge Era (New York: W. W. Norton & Company, Inc., 1973), 80. 65 Adams, Incredible Era, 318; Anthony, Florence Harding, 293; Baker, Conflicting Loyalties, 116- 117.
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relinquish some of his supervisory responsibilities to his various divisional and
bureau heads.66
In the fall of 1922, at the request of Representative Oscar E. Keller of
Minnesota and pursuant to a resolution calling for Daugherty’s impeachment, the
House Judiciary Committee launched an investigation of the Attorney General’s
performance in office. Assisted by counsel provided by the American Federation
of Labor, Representative Keller listed a number of specifications, which, among
other things, accused the Attorney General of permitting his Department to be
dissuaded from prosecuting the war-frauds cases, offering deferential treatment
to corporate interests interests affiliated with J. P. Morgan, and pursuing
extraordinary and unwarranted injunctive relief against striking rail shop
workers.67 Though the beneficiary of Labor’s considerable support, Keller was
unable to offer unequivocal proof with respect to any of his charges and failed to
win the Committee’s approval.68 Much of the criticism directed against the
Attorney General, and, impliedly, the President had undoubtedly been inspired by
purely political considerations, but the House Committee’s investigation of the
Department of Justice and Daugherty’s alleged misdeeds, which included
confirmation of his practice of appointing private and politically well-connected
attorneys, some of questionable competence, to handle many of the
Department’s cases, drew widespread attention to the “odor of impropriety” that
seemed to emanate from the Department under Daugherty’s leadership. Worst
66 Giglio, H. M. Daugherty, 130, 133; see also Dorothy M. Brown, Mabel Walker Willebrandt: A Study of Power, Loyalty and Law (Knoxville: The University of Tennessee Press, 1984), 50. 67 Giglio, H. M. Daugherty, 152; Hunt, Front-Page Detective, 174-175. 68 Hunt, Front-Page Detective, 175.
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of all were the disclosures that had come to light in regard to instances of
misconduct on the part of the Bureau of Investigation, specifically, its
uncomfortably close collaboration with private investigators, especially in the
labor relations field, and its employment of agents with highly questionable
backgrounds.69
President Harding’s sudden death in August, 1923, set the stage for a
number of revelations regarding corruption at the highest levels of government
that were to weigh heavily upon his successor Calvin Coolidge and raise serious
concerns within his party regarding its chances for success in the upcoming national elections. Coolidge felt a good deal of respect for Daugherty, but regarded him as being somewhat “erratic, impulsive, and unpredictable” by
nature.70 Eager to demonstrate some degree of continuity with his predecessor’s
policies and overall direction, he was reluctant, despite the rising chorus of
voices both within and outside of the party demanding Daugherty’s discharge, to
replace Harding’s cabinet for fear of exacerbating the divisions in the Republican
Party or weakening his standing as its most likely candidate for the presidency in
1924.71 Only two months after Coolidge had become president, however, the
Senate’s Committee On Public Lands, chaired by Senator Thomas Walsh of
Montana, began a formal review of the Department of Interior’s management of
the nation’s oil preserves, an investigation that would soon focus on the
69 Frank J. Donner, The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (New York: Alfred A. Knops, 1980), 46; Neil J. Welch and David W. Marston, Inside Hoover’s FBI: The Top Field Chief Reports (New York: Doubleday and Company, Inc., 1984), 17. 70 Robert H. Ferrell, The Strange Deaths of President Harding (Columbia, University of Missouri Press, 1999), 121. 71 Robert J. Maddox, “Keeping Cool With Coolidge,” The Journal of American History 53, no. 4 (March 1967), 774.
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Secretary of the Interior’s involvement in the leasing of mineral rights to publicly owned lands situated in California and Wyoming.72 Not until January of the following year, however, did the congressional investigation uncover any evidence of impropriety on the part of any official. The resulting clamor, especially from the more liberal wing of the Republican majority in Congress, forced the President to appoint an independent commission to investigate relations between Albert Fall, the former Secretary of the Interior, and the oilmen with whom he had a personal relationship, among them Harry F. Sinclair, the president of the nation’s fifth largest oil producer, and “oil baron” Edward L.
Doheny.73
Only days after President Coolidge had appointed former Senator Atlee
Pomerene, a Democrat, and Owen J. Roberts, a Philadelphia attorney and future
Supreme Court Justice, to serve on the Commission, Senator Burton K. Wheeler of Montana announced his intention to introduce a resolution in the Senate calling for an investigation of the Department of Justice.74 Increasingly inclined to perceive Daugherty as a political liability and eager to avoid the appearance of
72 The “Teapot Dome” controversy originated with the conservation policies adopted by the Roosevelt administration and subsequently expanded by President Taft who withdrew access to publicly-held lands in California and Wyoming in order to preserve known oil deposits for the navy’s future use. These reserves grew in importance during the nation’s naval buildup immediately prior to and during the First World War when the navy converted its fleet from coal- fueled to oil-burning ships. The tract of land known as “Teapot Dome” was designated a reserve field in 1915 and, like other fields removed beyond the reach of commercial refiners, remained a point of contention between conservationists and those seeking to extract the oil deposits they contained. The furor over the leasing of the “Dome” was, however, precipitated by the members of an oilmen’s association based in Denver who rightly suspected that they had been denied an opportunity to compete for leases to the property by the shenanigans of companies that were exploiting their access to Secretary Albert Fall of the Interior Department. Russell, The Shadow of Blooming Grove, 488-490; J. Leonard Bates, "The Teapot Dome Scandal and the Election of 1924," The American Historical Review 60, no. 2 (January 1955): 303-308. 73 Margaret Leslie Davis, The Dark Side of Fortune: Triumph and Scandal In the Life of Oil Tycoon Edward L. Doheny (Berkeley: University of California press, 1998), 145-163. 74 Murray, The 103rd Ballot, 117.
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defending him in public, a number of Republican Party leaders quietly suggested
to the President that he secure the Attorney General’s immediate resignation, but
Coolidge was not prepared to act so precipitously, at least not while the
Republican members of Congress remained divided over Harry Daugherty’s
fate.75 Further complicating the situation was the fact that since December the
Teapot Dome affair had been joined by several other equally important challenges to the President’s authority over the executive branch. Word regarding other instances of questionable conduct, specifically, allegations of corruption in the Veterans Bureau and in the Justice Department’s Office of Alien
Property Custodian, had come to light, each bringing, increasingly in reaction to a growing public furor, yet another investigation resulting in more disclosures of malfeasance in office and, inevitably, the threat of prosecution and further political embarrassment. Coolidge had strong reason to suspect that the assault upon Harding’s reputation and those of several of his appointees was motivated by purely partisan considerations and the ambitions of those who were prepared to exploit any situation that could reflect badly upon Harding’s successor in office.
Perhaps most troubling to the President was growing evidence that behind much of the criticism directed against his administration were signs of a more subtle and historically rooted antagonism between the legislative and executive branches of government: a growing conviction that behind “Congress’s concern
75 Donald McCoy writes that the President received conflicting advice from those he had summoned to discuss the matter. Senator William Borah of Idaho, had urged the President to fire his Attorney General, but both of the senators from Ohio, Daugherty’s home state, were afraid that Daugherty’s dismissal would swing many votes in the state to the Democratic party’s candidates in the upcoming election. Donald R. McCoy, Calvin Coolidge: The Quiet President (New York: The Macmillan Company, 1967), 212-213.
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over corruption,” there was a deeply felt “desire to improve its position in relation to the presidency and to effect a loss in the White House’s prestige.”76 Senator
Walsh’s investigation into the Teapot Dome affair had taken a decidedly more
aggressive posture in its relations with the executive branch when it sought to
obtain the testimony of the President’s secretary. Even Senator Wheeler, a
Democrat, had been able to secure a place on the committee investigating the
Justice Department despite his participation in the vitriolic debate that arose
between the conservative Republican Old Guard, now very much on the
defensive, and the more liberal or progressive Republicans and their Democratic allies.77
Senator Wheeler had served the Wilson Administration as the U.S.
Attorney for Montana, a post he occupied throughout the First World War despite his much publicized refusal to pursue indictments under the Sedition Act or against members of the IWW based upon their affiliation with that organization alone. Taking his seat in the Senate in 1922, he became a very open critic of the
Justice Department and was, in return, bitterly condemned by the Republican
National Committee for having allowed Montana “to become ‘a hot bed of treason and sedition,’” an allegation considered so dastardly and inappropriate that it would, a little more than a year later, bring almost all of the Democrats and a few disaffected Republican in Congress to his side when he proposed that the
Senate undertake a thorough examination of the Justice Department and its
76 Murray, The Politics of Normalcy, 122: “That urge,” Murray wrote, “had been present in varying degrees in all Congresses since 1918 and had shifted back and forth among Republicans and Democrats with considerable bipartisan impartiality.” 77 Murray, The Politics of Normalcy, 117; McCoy, Calvin Coolidge, 217.
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enforcement of federal law. Under the chairmanship of Senator Smith Wildman
Brookhart, a Republican from Iowa, the Senate investigating committee began
taking testimony from witnesses who, in return for the grants of immunity
provided them, offered detailed evidence respecting a long list of inappropriate
and illegal behavior, including the sale of pardons and federal jobs, “the issuance of illegal permits to withdraw liquor, personal violations of the Volstead Act, and unlawful searches and spyings,” none of which directly implicated the Attorney
General, but which were sufficient to damage his reputation and to “disenchant all but his most ardent supporters.”78 The issue concerning “searches and spyings” was especially provocative given the growing reputation of the Bureau of Investigation for illicit and unseemly behavior and other conduct that was
clearly political in nature and which had been directed against the Harding
Administration’s or the Department’s growing number of “enemies.”79 Wheeler’s
attacks upon Daugherty were especially irksome to the Attorney General who
had grown increasingly insecure in his office and uncertain of his standing in the cabinet or with his President. His response, which was to sanction the filing of an indictment charging Senator Wheeler with fraud and to refuse to grant the Senate
‘s investigating committee access to the Department’s records, was so obviously
78 “Daugherty, Aegis of Justice,” The Nation 118, no. 3064 (March 26, 1924), 333-334; McCoy, Calvin Coolidge, 216: Anthony, Florence Harding, 506-508. 79 Neither Pomerene, nor Roberts were sufficiently trusting of the Department’s agents to request their use in the Commission’s investigation of former Secretary of the Interior Albert Fall. They relied, instead, upon the Secret Service to provide them with the necessary manpower. The Commissioners’ preference did not go unnoticed. Within weeks, the Secret Service agents assigned to the Commission were being kept under observation by agents from the Bureau of Investigation and Burns’ own private detective agency that were monitoring and reporting on their progress. At Burns’ direction, Bureau agents had also entered and searched the hotel rooms set aside for the Brookhart Committee’s witnesses, using intimidation to discourage any potentially damaging testimony. Walter S. Bowen & Harry E. Neal, The United States Secret Service (Philadelphia, PA: Chilton Company, 1960), 97, 99; Welch and Marston, Inside Hoover’s FBI, 17; Murray, The Politics of Normalcy, 121.
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an attempt to discredit and to resist his critics as to finally force Coolidge’s
hand.80 Daugherty’s departure, however, did not bring the controversy he had
caused to an end, but rather intensified it, leaving the President with no other
option than to do whatever was necessary to check the Department’s drift. For
the President, the task ahead went beyond merely ensuring that the Department
functioned in a manner that conformed to law and. Of especially critical importance was that it be restrained in any future activity to those areas specifically designated as its special responsibility and that it do nothing to transgress the jurisdictional boundaries that had been drawn for that purpose.
The man to whom Coolidge offered this especially sensitive assignment was one of his former classmates at Amherst College Harlan Fiske Stone. Stone was, at the time, the head of the litigation department for one of New York’s most influential law firms, Sullivan & Cromwell, and had served for more than ten years as the dean of the Columbia University law school where he became renowned for his advocacy of more restrictive entrance requirements for both law students and lawyers before the bar.81 His appointment could only suggest, as it was intended to, that the President was determined to restore confidence in the
Department of Justice and to resolve the controversy that surrounded it. Despite
Stone’s limited experience in the practice of law, he was a recognized legal
scholar, had served ably as an administrator, and possessed a strong reputation
for fair-mindedness and integrity, all qualifications that were badly needed to
offset the damage done by his predecessors. How Stone was going to
80 Giglio, H. M. Daugherty, 130; Cook, The FBI Nobody Knows, 133-134. 81 Mason, Harlan Fiske Stone, 143.
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accomplish this objective remained, for a while, an open question, but he made
his principal concern clear from the very beginning. In an address Stone
delivered shortly after the announcement of his appointment, he observed that
“there is nothing quite as vital to the future well-being of this republic as that its
laws should be enforced and respected. . . . . And that statement too is not
applicable alone to those enemies of society who violate the law for personal
gain or advantage; it applies to all of the agencies of law enforcement and to the
Government itself.” Receiving little instruction from the President by which to
guide him, Stone turned to other sources for advice as to how he should
proceed, among them, Felix Frankfurter, the Harvard law professor whom he had
joined some years previous to protest the Justice Department’s deportation raids.
Frankfurter opined that the “key” to restoring efficiency and morale in the
Department would be those whom he chose to occupy important positions within
the Department’s flagging bureaucracy. “Personnel,” Frankfurter was said to
have written, “determines the governing atmosphere and understanding from
which all questions of administrative organization take shape.”82 Taking the
advice to hear, Stone’s dismissed a number of Daugherty’s holdovers and
imposed strict rules regarding the kinds and nature of business that could be conducted in the Department. The Justice Department, he believed, “could more
effectively perform its duties by acting the part of a gentleman than by resorting to tactics of a different character.”83
82 Ibid., 148. 83 Ibid., 150.
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Stone’s brief sojourn as attorney general revealed little interest on his part
in innovative policymaking or Departmental restructuring. Both he and the
President were far more desirous of restoring routine and continuity to the
Department’s operation, and, like Frankfurter, they envisioned this process as
being less one of bureaucratic tinkering than the careful selection of personnel
who shared a healthy respect for the rule of law.84 Stone’s strengths lay in his political neutrality, his high regard for competence in the performance of official duties, and his interest in making the Department fully accountable. Among those who simply could not accommodate these new demands was the head of the Bureau of Investigation. To Burns, Stone had been explicit in his instructions: the Bureau’s agents were to be “impressed with the fact that their duties required the gathering of evidence of violations of the federal statutes,” and that it followed that they could not themselves be guilty of violating the law. But Burns’ days, like those of his style of policing, were growing increasingly numbered. Burns had come to personify the ways of the “old school” of sleuthing, with its ethical ambiguities, its indifference to rule, its ruthlessness, and general disregard for bureaucratic values and discipline, and he would soon be discharged, replaced, eventually, by someone who was sufficiently learned in policing, but “not steeped in the usual police tradition that it takes a crook to catch a crook.” 85 Henceforth,
the activities of the Bureau and the Department of which it was a part would be
strictly confined to the investigation and prosecution of violations of federal law,
and all of its resources and energies would be devoted to that single purpose. In
84 Baker, Conflicting Loyalties, 137. 85 Mason, Harlan Fiske Stone, 150.
345 a broader context, Stone’s true mission involved much more than merely restoring public confidence in the Justice Department and integrity to its operation. In a political atmosphere rife with suspicion regarding federal policy and intentions, it was his job to provide further assurance that true power, and especially police power, would remain, as the 10th Amendment had directed, in the hands of those upon whom it was originally bestowed.
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Chapter 8
A BREAKDOWN OF ORDER
The proponents of the [National Prohibition Act] paid no heed to the admonition that “no law can be effectively enforced except with the assistance and cooperation of the law-abiding element.” On the contrary, the passage of the act and its enforcement were urged with a spirit of intolerant zeal that awakened an equally intolerant opposition and the difficulties now being experienced in rallying public sentiment in support of the Eighteenth Amendment result largely from that spirit of intolerance. National Commission on Law Observance And Enforcement, 19311
Modern criminals of the most objectionable type are experts. The have at their command every modern, scientific invention. Experts are needed to cope with them. Progress is being made in this direction. Many police forces are developing schools for expert training. . . . . Instead of pampering the evil doers, we should strengthen the arm of the police, protect them from political influence, and give them expert training and scientific equipment, and bungling of important cases would be less frequent and there would be less temptation for police to resort to rough or clumsy tactics. William D. Mitchell, Attorney General, 19322
The unprecedented expansion of federal power that accompanied the
First World War stretched, but did not alter the nation’s commitment to a federal
system in which the powers and responsibilities of government were carefully
limited and deliberately dispersed. In its preparations for and conduct of the war,
the country displayed a remarkable degree of acceptance to the necessity of
balancing the demands of national defense, as they were then conceived, with its
democratic values and federalist traditions. But even as the war’s end
1 National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States (Washington, D.C.: Government Printing Office, 1931), 3. 2 William D. Mitchell, Attorney General of the United States, “The Administration of Criminal Justice,” Radio Broadcast, March 6, 1932, under the auspices of the American Bar Association (National Broadcasting Company), 5-6.
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precipitated a hurried and much anticipated return to the more familiar scales and
concepts of governance - to a “rhythm” of life less driven by “the intensities of
patriotism” and free from “the tight atmosphere of reform and dedication” to which the country had been previously drawn – the sense of unity, national purpose, and organizational efficiencies that were achieved during this wartime experience gave way to social and cultural tensions and divisions that found new opportunities for expression in the war’s aftermath.3 From such conflicts, crime emerged as an important political issue, one in which national prohibition was, despite the prominence given it by the breadth and the complexities of the controversy that surrounded its enforcement, merely one aspect of a much larger campaign to restore order. Of greater significance in the struggle to find and develop a more appropriate and coordinated response to the increasingly organized and violent crime that had become a common occurrence after the war were the contributions of local crime commissions, concerned citizens, police associations and reformers, and state legislatures. In the face of growing urbanization, rising immigrant populations, and the technological transformation of their communities, these forces struggled to change the very concept of policing by ridding it of its indifference to corruption, a tradition that was perversely strengthened by a national policy of prohibition that failed to resolve the conflicts that arose not only as to the means by which it was to be
accomplished, but also as to its social, economic, and political objectives.
3 Norman H. Clark, The Dry Years: Prohibition and Social Change In Washington (Seattle: University of Washington Press, 1988 [Revised Edition]), 146; David J. Bodenhamer, “Reversing the Revolution: Rights of the Accused In a Conservative Age,” Edited by David J. Bodenhamer and James W. Ely, Jr., The Bill of Rights In Modern America After Two Hundred Years (Bloomington: Indiana University Press, 1993), 103-104.
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National Prohibition and the Failure of “Concurrent” Policing
The adoption of the 18th Amendment, which prohibited “the manufacture, sale or transportation of intoxicating liquors,” represented a radical departure from the federal government’s incremental approach to the whole subject of regulating the production and sale of alcohol. Beginning in 1906, Congress enacted a series of laws that forbade or imposed strict controls upon the introduction of intoxicating liquors in federal facilities and military bases, the nation’s territories, Indian reservations, and, eventually, even the mails, all steps that conformed to contemporary views regarding the proper exercise of governmental authority. In 1913, however, over the objections of President
William H. Taft and others who were concerned that Congress was, in effect,
delegating to the states its regulatory power over interstate commerce, the
Webb-Kenyon Act, prohibiting the importation of alcoholic beverages into states
prohibiting its use or possession, was passed into law.4 Despite these concerns
regarding the constitutional validity of the statute, the rationale behind Webb-
Kenyon was consistent with the federal government’s supplementary
enforcement role, an approach that placed the larger burden and expense of
enforcement, along with any attendant political consequences, upon the states.
But perhaps of greater significance was the fact that the Act presaged a change
in strategy on the part of its principal proponents, among them the Anti-Saloon
4 James H. Timberlake, Prohibition and the Progressive Movement (Cambridge, MA: Harvard University Press, 1963), 160-162; Andrew Sinclair, Era of Excess: A Social History of the Prohibition Movement (New York: Harper and Row, Publishers, 1964), 154.
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League (ASL) that would ultimately secure the adoption of the Prohibition
Amendment and all subsequent enforcing legislation.
The ASL had risen to a place of prominence in the nation’s temperance
movement by eschewing the appearance of a moral reform movement and
emphasizing the practical benefits to be derived from direct political action.
“Drawing on the dominant trends of the Progressive era,” the ASL retained
professional organizers and managers to direct its activities, utilized its growing
constituency to build statewide organizations, and adopted aggressive lobbying
techniques to secure passage of ordinances and statutes that placed heavy,
often ruinous burdens upon its enemies, the nation’s brewers and saloon
keepers. The latter were especially reviled as a threat to order and decency and
were often linked in the public mind with crime and political corruption, an image
that was fully exploited by the ASL and which made government intervention and
restrictions over the sale of alcohol far more palatable to the general public.5 By
1916, the ASL, which openly supported any candidate for office willing to
embrace its agenda regardless of his political affiliation, had secured for itself an
enormously influential position in the nation’s political life. If the “emotional core”
of prohibition had arisen originally from “nativist religiosity and rural, small-town
values, its political success . . . was built on bridgeheads established in the cities
. . . among industrial and civic leaders who were attracted to the ant-saloon
cause as part of their pursuit of other goals, such as electoral reform, higher
5 Clark, The Dry Years, 84; Thomas R. Pegram, The Struggle for a Dry America, 1800-1933 (Chicago, IL: Ivan R. Dee, Publisher, 1998), 113-130; Robert M. Crunden, Ministers of Reform: The Progressives’ Achievement in American Civilization, 1889-1920 (Urbana: University of Illinois Press, 1984 [1982]), 168.
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productivity and better labor control, the ‘Americanization’ of foreigners, or the
containment of the criminal” and those of “loose or low” morality.6 The ASL’s growing political influence, along with its success in achieving passage of the
Webb-Kenyon Act, gradually strengthened its resolve to pursue a constitutional
amendment banning the manufacture and sale of intoxicating liquor throughout
the nation. It was, however, America’s involvement in the First World War that
provided both the setting and the occasion for the introduction of a congressional resolution that would become the Eighteenth Amendment to the constitution.7 In
the interest of conserving and more fairly allocating strategic or scarce resources,
Congress passed the Food and Fuel Control Act (the Lever Act)8 which included
a provision forbidding the use of certain grains in the production of distilled
spirits. While the responsibility for administering the controls established under
Ac, along with the enforcement powers it granted to the president, was assigned
to the newly established Food Administration, regulatory power over the
manufacture of alcoholic beverages was assigned to the Bureau of Internal
Revenue, a decision concerning jurisdictional responsibility that would prove
especially fateful for the Department of Treasury.9
The Lever Act was one of several measures enacted during the war incorporating provisions banning or placing restrictions upon the manufacture, sale, or consumption of intoxicating liquors. None, however, were as sweeping
6 Charles Bright, The Powers That Punish: Prison and Politics in the Era of the “Big House,” 1920-1955 (Ann Arbor: The University of Michigan Press, 1996), 35. 7 Daniel R. Beaver, Newton D. Baker and the American War Effort, 1917-1919 (Lincoln: University of Nebraska Press, 1966), 215. 8 40 Stat. L., 282 (August 10, 1917). 9 Laurence F. Schmeckebier, The Bureau of Prohibition: Its History, Activities and Organization (Washington, D.C.: The Brookings Institution, 1929), 4; Timberlake, Prohibition and the Progressive Movement, 174.
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in its effect as was the Wartime Prohibition Act,10 which, despite its title, was
actually enacted after the armistice and forbade the sale of alcohol for all
beverage purposes.11 The Act, touted as a temporary measure, was intended to
ensure that the restrictions and other regulatory controls established during the
war would be kept in force until such time as the proposed prohibition
amendment, already approved by Congress, could be ratified by a majority of the
states.12 ASL’s dramatic improvement upon the influence it wielded in Congress,
aided by the momentum gained through the enactment of a series of prohibition
measures, proved instrumental in garnering support for the resolution in
Congress, but the ASL’s success came at an enormous cost to the prohibitionist
movement and would ultimately be the undoing of the enforcement process
established to achieve its ultimate goal. From its earliest days as a growing
political force, the prohibition movement had drawn support from a broad
spectrum of groups ranging from the religious to the extreme, the latter often framed by nativist or anti-Catholic sentiment, and whose primary concerns were often unrelated to alcohol consumption. What held this coalition together in the cause of prohibition was its high regard for American cultural values and basic standards of decency. As long as it could maintain its identity as a movement advocating for sweeping moral change, its unity and political influence were fairly assured. The adoption of the 18th Amendment, however, and its subsequent
enforcement compromised the prohibitionists’ long-standing claim to a non-
10 40 Stat. L., 1045 (November 21, 1918). 11 Pegram, The Struggle for a Dry America, 147. Application of the Act’s provisions faced immediate challenge and was found constitutionally valid in Hamilton v. Kentucky Distilleries Company, 251 U.S. 146 (Schmeckebier, The Bureau of Prohibition, 5 (fn.). 12 Ibid., 148.
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partisan and moral creed that reflected the “will and spirit of ordinary
Americans.”13 The ASL turned instead to the use of more “formal social controls”
and criminal sanctions to punish behavior it deemed immoral or unhealthy, thereby replacing a more moderate approach to moral and social change with coercion and intimidation as the organization’s tools of preference, a choice that rendered their campaign indistinguishable from a state policy that would be
resisted by growing numbers of Americans who resented the manner of its
implementation, its invasiveness, and its tendency to confirm the worst of their
fears and suspicions concerning the use of federal power.14 Having thus
compromised the core values of their movement and having loosened their ties
to much of their grassroots base, prohibitionists in general and the ASL in
particular were forced to assume an increasingly defensive posture, one that
would make it difficult for them not to acknowledge the inadequacies and growing
futility of the nation’s effort to enforce its national prohibition laws.15
What brought this resentment and growing concern regarding the power of
the state into national focus was the federal government’s on-going effort to
enforce the provisions of the National Prohibition Act (the Volstead Act).16
Passed in October of 1919, the Volstead Act assigned the primary responsibility for its enforcement to the Bureau of Internal Revenue, a role its parent agency, the Department of Treasury, itself still adjusting to the demands made upon it by
13 Michael Kazin, The Populist Persuasion: An American History (New York: BasicBooks, 1995), 102, 103. 14 Clark, The Dry Years, 148; Kazin, The Populist Persuasion, 105; George E. Mowry, Ed., The Twenties: Fords, Flappers & Fanatics (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1963), 60-61; Pegram, The Struggle for a Dry America,150, 153. 15 Sinclair, Era of Excess, 274. 16 41 Stat.L. 305.
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the new income and war tax laws, quietly, but unsuccessfully resisted.17 Even as
his Bureau struggled to prepare for this new responsibility, a very worried
Commissioner of Internal Revenue advised Congress of the likely consequences
of any failure on the Bureau’s part to effectively enforce the Prohibition Act: not
only would it reflect very poorly upon the government’s policing capabilities, he
warned, but it would also “bring into disrepute the reputation of the American
people as law abiding citizens.”18 It went beyond question that the Bureau had much about which to worry. Congress, having given little thought before hand to the challenges posed by the Bureau’s responsibilities, chose, nevertheless, to encumber it with the additional “tasks of detecting and apprehending offenders, licensing and controlling manufacturers and vendors of alcohol, inspecting brewers and supervising the dispensing of liquor for medicinal and sacramental purposes.”19 The Treasury Department’s misgivings were hardly assuaged by
the increased powers with which the Bureau was equipped under the Act to
suppress illicit trafficking in liquor. Granted the authority to seize private property
used to convey or store illegal alcohol or to temporarily close any establishment
where such contraband may have been manufactured or sold, the Bureau’s
newly created Prohibition Unit, an amalgam of the offices within the Bureau
overseeing the control of narcotics and industrial alcohol, was faced with the
challenge of enforcing a law, the product of Congressional give and take, which
was seriously flawed. Employing a somewhat ambiguous scheme to distinguish
17 Schmeckebier, The Bureau of Prohibition, 6-7. 18 National Commission On Law Observance and Enforcement, Report On the Enforcement of the Prohibition Laws, 4. 19 Julia E. Johnson, Ed., Selected Articles On the Problem of Liquor Control (New York: The H. W. Wilson Company, 1934), 93.
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illegal from legal behavior and utterly reliant upon a level of federal-state
cooperation for which there was neither precedent, nor a sustaining consensus,
the Volstead Act was critically impaired by what Arthur Millspaugh, a research
analyst for the Brookings Institution, would later characterize as significant “errors
in policy” that would make its implementation “impossible.”20
The 18th Amendment incorporated certain assumptions regarding the role the federal and state governments were expected to play in securing compliance with the amendment’s ban on alcohol. One of its most controversial features was a provision that granted each level of government similar or concurrent enforcing powers, a feature that became the focus of the legal challenges that followed the amendment’s ratification. Resistance to the assertion of federal authority into areas customarily reserved to the states remained particularly strong among those who opposed federal policies that infringed upon state and local jurisdictions or bore no relation to interstate commerce. Legislation passed in connection with alcohol control, however, was considered an issue deserving special treatment. The federal judiciary, for one, had long supported state efforts to limit the public’s access to alcoholic beverages. In a series of decisions reaching back into the nineteenth century, the Supreme Court had not only come to recognize the states’ authority to control or prevent the manufacture and distribution of alcohol, but to allow Congress, when it enacted the Webb-Kenyon
Act, to “divest” interstate shipments of liquor of their virtual immunity from state
20 Arthur C. Millspaugh, Crime Control By the National Government (Washington, D.C.: The Brookings Institution, 1937), 54.
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regulation under the interstate commerce clause.21 In 1920, therefore, when
arguments challenging the constitutional validity of the 18th Amendment were advanced on the grounds that it exceeded the amending power reserved in
Article V of the Constitution and that it required “joint” state and federal approval of any enforcing legislation, the Court ruled in favor of the state and continued to do so in subsequent rulings that narrowly construed the application of the 4th
Amendment protections against unreasonable searches and seizures and broadened the police powers and regulatory authority of both state and federal prohibition officials.22 This trend did not escape the notice of the nation’s legal
and journalistic circles and became the subject of considerable commentary and
legal questioning, a development which provoked widespread debate following the Supreme Court’s decision upholding the legality of federal wiretapping despite that fact that the practice was in direct violation of a state statute specifically outlawing such activity.23 At the center of this debate was not so
much the issue created by conflicting statutory authority, but a question
concerning the “constitutional morality” - the philosophical underpinnings and
reflected principles of the constitution - of the wiretapping issue,24 an issue which,
though less easily articulated and perhaps more intuitional in nature, was far
21 William F. Swindler, Court and Constitution In the Twentieth Century: The Old Legality 1889- 1932 (New York: The Bobbs-Merrill Co., Inc., 1996), 198-199; Timberlake, Prohibition and the Progressive Movement, 176; David P. Currie, The Constitution In the Supreme Court: The Second Century 1888-1986 (Chicago: University of Chicago Press, 1990), 176-181; Dorothy G. Fowler, Unmailable: Congress and the Post Office (Athens: The University of Georgia Press, 1977), 126-128; Clark Distilling Co. v. Western Mountain Railway, 242 U.S. 311 (1917). 22 National Prohibition Cases, 253 U.S. 350 (1920); Currie, The Constitution In the Supreme Court, 177; Swindler, Court and Constitution In the Twentieth Century, 260-261; M. Browning Carrott, “The Supreme Court and Law and Order In the 1920’s.” Maryland Historian 16, no. 2 (1985), 13. 23 Olmstead v. United States, 277 U.S. 438 (1928); Walter F. Murphy, Wiretapping On Trial: A Case Study In the Judicial Process (New York: Random House, 1965), 124-126. 24 Swindler, Court and Constitution, 261-263.
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more widely appreciated in the public sphere than the line of reasoning justifying
Olmstead’s outcome. Even the Justices had been divided over the issue of
whether wiretapping should be subject to the Fourth Amendment, a difference of
opinion that reflected their divergent views regarding the morality or propriety of
wiretapping as a law enforcement tool.25 Thus armed with an array of favorable
judicial rulings that were increasingly suspect or openly criticized as a “betrayal of
the values on which the Constitution itself was predicated,” the Department of the
Treasury was left with no alternative than to press on with the task of implementing a policy for which there was only meager support in Congress and virtually no policy direction from the president.26
As adopted, the 18th Amendment contemplated a dual system of
enforcement, but neither it, nor the Volstead Act made any provision for the
coordination or standardization of the forces assigned to this task. Though given
assurances that federal participation in this scheme would not interfere with state
or local controls then or soon to be put in place,27 the states were not required to
participate, an arrangement embraced by the original framers of the amendment
to dispel any suspicions regarding the proposed extension of federal power.
Nevertheless, it was widely recognized that if the 18th Amendment were to
succeed, the responsibility for enforcement would have to rely upon the larger
resources of the states and local governments, a fact that, for a decade or more,
25 Edward V. Long, The Intruders: The Invasion of Privacy By Government and Industry (New York: Frederick A. Praeger, Publishers, 1966), 128-130. 26 Swindler, Court and Constitution, 262. 27 At least three-quarters of the states had already devised some form of regulation or had imposed outright bans, and all but two would do so within a year of the 18th Amendment’s ratification. Charles Merz, The Dry Decade (3rd Ed.) (Seattle: University of Washington Press, 1970), 205.
357
guided congressional decision-making regarding the appropriations to be
allocated and the size of the force to be organized in fulfilling what was
envisioned as a lesser or complementary enforcement role. The importance of
the states’ contribution to the success of what had become a national policy
simply could not be exaggerated: immediately following his election in 1924,
President Coolidge himself, having extolled the advantages of “joint action,”
pointedly reminded his radio audience that neither the 18th Amendment, nor the
Volstead Act “contemplated surrender of state responsibility” in the enforcement
of national prohibition.28 Yet within the year, Coolidge, at the urging of Andrew
Mellon, his Secretary of the Treasury, and concerned that continuing debt and
higher taxes would undermine the nation’s prosperity, asked Congress to reduce
the sums it proposed to expend on prohibition enforcement. Holding the line on
such appropriations, he argued, would help to encourage “government efficiency” and compel state and local governments to assume greater responsibility for the enforcement of the nation’s dry laws.29 Whether state and local legislators were
inclined to accept the growing weight of prohibition was, however, still another
question. In the postwar years, most state governments became deeply
embroiled in the political turmoil that surrounded such issues as balancing a
budget and choosing among competing demands for public expenditures. Such
pressures gradually worked to reduce state allocations for prohibition
enforcement, a development that was accelerated by the growing popularity of
28 C. Bascom Slemp, The Mind of the President As Revealed by Himself In His Own Words (Garden City, NY: Doubleday, Page and Company, 1926), 99, 101. 29 Donald R. McCoy, Calvin Coolidge: The Quiet President (New York: The Macmillan Company, 1967), 223, 302-303.
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an alternative that, by leaving the method and responsibility for liquor regulation
to local communities and the counties, not only avoided fully alienating either
side in the prohibition debate, but transferred the cost of regulation and
enforcement to local government. Such decisions left the federal government increasingly isolated in the implementation of an enforcement policy for which federal policing – inexperienced in the kind of policing required and insufficiently equipped - was ill suited, forced to justify its continuing involvement in “crime fighting” on an inherently flawed rationale – that of concurrent powers.30
At the state level, local sentiment regarding the consumption of alcohol
deeply influenced the nature and degree of prohibition enforcement a community
could expect. Most states relied upon municipal police organizations and rural
sheriffs to enforce state bans or controls, a situation that tacitly acknowledged
the practicality, if not the necessity, of balancing the level of enforcement to
which local law enforcement officials were prepared to commit against the risk of
losing the communal support and cooperation so vital to their work. Such
considerations were foreign to federal enforcement agents for whom community
sentiment was of a far lesser concern. These differences, along with the effects
of wide variances among the states with respect to evidentiary standards, legal
procedures, and constitutional rights, made coordination between federal and
state or local authorities difficult at best,31 but for the Prohibition Unit and the
Treasury Department’s state directors, the lack of adequate funds and sufficient
manpower still made such cooperation absolutely essential. The other major
30 Clark, The Dry Years, 90-91. 31 Jane Perry Clark, “Joint Activity Between Federal and State Officials,” Political Science Quarterly 51, no. 2 (June 1936): 230-269, 241.
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obstacle with which federal enforcement officials were confronted at the local level was the surprising degree to which federal intervention, a matter susceptible to so many different and negative perceptions, was actually resented and even resisted. From the earliest times in the nation’s history, the regulation of morality had been a matter of strictly local concern and tended to reflect local sensibilities and values held in common. Such powers were regarded as among the most important prerogatives that could be exercised by a locality or a state.
They reflected a truly settled issue, that is, they were so widely shared as to be non-controversial, and became, therefore, an important part of a community’s standing, its identity. Federal enforcement simply could not avoid, short of a compelling national emergency, being perceived as a preemptive force that threatened this much cherished sense of autonomy. That the justification which was offered to explain federal involvement in this instance concerned prohibition and a higher duty of obedience to law - a policy around which no consensus had formed and whose legitimacy remained an unresolved issue – did little more than aggravate latent suspicions regarding the federal government’s inclination to promote “a single federal standard of conduct” in place of local sentiment, tested values, and time honored traditions.32
The early optimism that was reflected in the public statements of federal officials regarding the likely effectiveness of prohibition enforcement was soon eclipsed by the phenomenal growth of the illicit liquor trade and thereafter contrasted sharply with the increasingly desperate pleas for larger appropriations
32 David E. Kyvig, Ed., Law, Alcohol and Order: Perspectives On National Prohibition (Westport CT: Greenwood Press, 1985), 77.
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and additional police powers. Congress’ failure to respond and the timidity with
which Presidents Harding and Coolidge handled the issue of enforcement
became major sources of frustration for the Bureau’s Prohibition Unit, but even
these paled in comparison to the disappointment that was registered in
connection with the relatively subdued backing the Unit received from those
groups, “churches, civic organizations, educational societies, charitable and philanthropic societies,” that had been “instrumental in procuring the adoption” of
the prohibition amendment.33 The Unit’s sense of betrayal was undoubtedly aggravated by the complaisance of a public which lacked the motivation to provide the assistance and cooperation to which the federal officials involved felt entitled in view of the overwhelming public support that had made the adoption of the 18th Amendment possible. Such widespread approval became a guiding
factor in the organization of the federal government’s newly established
enforcement program and encouraged the development of an organizational
structure that instead of maximizing the opportunities for cooperative action in
each of the states as was intended, revealed serious weaknesses in the
government’s working assumptions. It soon became clear that the untrained
agents selected to implement the federal government’s enforcement strategy
were inadequate to the task, a problem attributable not only to the political
considerations surrounding their appointment, but also, given the poor pay and
conditions of their employment, to the quality of applicants attracted to the
work.34 These deficiencies were compounded by the absence of any adequate
33 National Commission On Law Observance and Enforcement, Report, 3-4. 34 Pegram, The Struggle for a Dry America, 154-155.
361 supervision and by the high turnover that affected all levels of personnel, depriving the agents of the benefit of the lessons learned from their accumulated experience and making working relationships with local enforcement officers, on whose information and powers of arrest the agents often depended, extremely challenging. Recorded incidences of corruption and the dismissals or indictments that followed were so numerous as to have permanently damaged the collective reputation of the agents, a stigma the Prohibition Unit attempted to correct by encouraging its field staff to disassociate themselves from any local police officials whom they suspected of being corrupt, a measure that, in some instances, undermined ongoing efforts to gain a foothold in communities in which the agents were operating.
By 1925, it had become evident that the government’s enforcement machinery, the subject of mounting criticism for an approach that sacrificed strategy for relatively unfocused attacks on small “bootlegging” operations, required a major overhaul. The result was a significant restructuring of the enforcement “branch” of the Prohibition Bureau and the creation of new operational districts corresponding to those of the federal judiciary, a step taken to bring some degree of coherence to the Unit’s relations with the United States
Attorneys prosecuting their cases and with the district marshals who were charged with executing the field agents’ warrants and taking custody of all suspects detained and evidence seized. Oversight of the Treasury Department’s enforcing agencies, the Prohibition Unit, the Coast Guard, and the Customs
Service, was placed under the direction of a single Assistant Secretary, who was
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charged with facilitating cooperation among the three agencies, but who bore no
administrative, budgeting, or planning responsibility for any of them. In April,
1926, a subcommittee of the Senate Judiciary Committee, formed in response to
questions raised regarding enforcement of the Volstead Act, completed a report
highly critical of the Treasury Department’s failure to prevent the diversion of
industrial or stores of alcohol intended for licensed commercial use into illicit
channels of distribution. The subcommittee’s findings prompted a wholesale re-
evaluation of the Prohibition Unit’s methods of enforcement and the adoption of a
new strategy that was more in keeping with traditional notions respecting federal
jurisdiction and policing. From that point forward, the federal government would
begin to shift its attention to a level of trafficking in illicit liquor, the
“commercialized traffic in liquor,” that tended to be more tightly organized and far
more likely to have interstate or transnational implications. This adjustment in
strategy clearly reflected the realities and limitations of national prohibition
enforcement and signaled a return to what were perceived as a legitimate, and
therefore less controversial, basis for federal policing, the use of federal
resources to eliminate major “sources of supply” and to “prevent the
manufacture, importation, and sale” of intoxicating beverages “in commercial quantities.”35 But even this change in emphasis could not alleviate the problems
caused by an insufficiency of manpower and inadequate funding, problems that
were destined to be magnified by the conventions negotiated that same year with
Mexico, Canada, and Great Britain for the right to board and search vessels in their territorial waters, agreements that extended the geographic areas within
35 Schmeckebier, The Bureau of Prohibition, 12.
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which the government was expected to operate and which increased the
administrative burden of managing these new responsibilities.36
By 1926, the federal government could rely upon no other than its own limited resources to enforce the nation’s prohibition laws. The level of state support that the framers of the 18th Amendment or those state legislators who
had voted for its ratification had anticipated was simply not forthcoming. More
than any other development, the failure of the states to vigorously enforce their
own prohibition laws threatened to unravel a national plan for the enforcement of
prohibition resting precariously upon the concept of concurrent powers and for
which there was no substitute or policy alternative. The problem facing the
states was that neither the exhortations of highly placed federal officials,
including three presidents, nor the political influence wielded by the supporters of
prohibition could overcome the financial, administrative, or political
considerations that made a stricter approach to prohibition enforcement so
prohibitive or otherwise costly. The result, inevitably, was one that reduced the
state and local resources available for enforcement, an outcome which, while not
directly impacting upon federal efforts to secure the nation’s borders or to break
up major distribution rings, nevertheless, left a widening gap between the two.
Aside from New York and Montana, no other state had completely removed itself
from the cooperative arrangement envisioned by the 18th Amendment’s
concurrent powers provision. But the reality of congested courts, greater expenditures for policing, and increased political turmoil prevented others from
36 David E. Kyvig, Repealing National Prohibition (Chicago: The University of Chicago Press, 1979), 30-31; Schmeckebier, The Bureau of Prohibition, 13-17.
364
fully conforming their individual programs to the standards of performance or
expectations that, at a minimum, national prohibition required in order to be
completely effective.37 Desperate to reverse this trend, President Coolidge was
finally persuaded to authorize the deputizing local police officials as a way of
energizing prohibition enforcement in communities where bootlegging was especially blatant and uncontrolled.38 But this attempt to revive enforcement at
the state level, though never implemented, was, nevertheless, widely condemned
as a clear abuse of power, made more egregious because the law the President sought to enforce was increasingly viewed as an abridgment of individual rights, an affront to freedom of choice.39
Prohibition figured prominently in the election of 1928, its proponents demonstrating that they could still draw upon considerable support from within the ranks of both major parties, a fact that gave the Republican candidate
Herbert Hoover a significant advantage over his Democratic opponent. The results of the election also strengthened prohibition’s standing in Congress, which was now much more inclined to increase appropriations for its enforcement and to approve the imposition of more severe penalties upon any who disregarded the law.40 Growing resentment of the leniency shown violators
of the Volstead Act, particularly those who were dubbed “big fellows” because of
their control over major liquor distribution rings, had begun to boil over, especially
after it had become so obvious that the punishment provided by the current
37 Merz, The Dry Decade, Chapter 8. 38 Executive Order No. 4439 (Amendatory), May 8, 1926. 39 Swindler, Court and Constitution, 265; Merz, The Dry Decade, 191. 40 Schmeckebier, The Bureau of Prohibition, 35.
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statutes were an ineffective deterrent.41 Enactment of the Jones Law or the “Five and Ten” Act,42 even though it raised entirely new concerns as to whether the
federal courts and the United States Attorneys charged with applying the law
would distinguish between casual and “commercial” offenders, was in many ways
reflective of far larger changes that were altering public attitudes toward crime
and those officials and agencies charged with its suppression. Worries
concerning alarming increases in rate of crime and widespread corruption and
official collusion became endemic in the latter half of the 1920’s, leaving the
public feeling increasingly perplexed and helpless in the face of developments
that seemed to be beyond their control. Such impressions, deeply emotional in
origin and often exaggerated, were openly shared and given focus through the arguments of public officials and others who, in the interests of deterring crime and curtailing “lawlessness,” demanded swifter and more severe punishment of the lawbreaker.43
Given the unsettled nature of the social and moral issues that surrounded
prohibition, the ambiguities of the laws that made its application so uncertain, and the political divisions for which it was clearly responsible, it becomes evident that prohibition was not viewed in the same light as were other, more harmful and clearly criminal forms of behavior. It was, in fact, an open secret that the public’s appetite for alcoholic beverages provided strong incentives to criminal
41 “Jail For Big Criminals Only,” Literary Digest 101, no. 5 (May 4, 1929), 4; Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, NY: Viking Press, 1956), 163. 42 So called because it raised federal penalties to maximum sentences of five years imprisonment or a ten thousand dollar fine. 43 Mabel Walker Willebrandt, The Inside of Prohibition (Indianapolis: The Bobbs-Merrill Company, 1929), 252, 254-255.
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organizations and other entrepreneurs involved in the manufacture, distribution,
and sale of alcohol. As a result, the drinking public became, however they may
have regarded prohibition, complicit in the violation of state and federal laws, a dilemma that evolved into a wider disregard for sanctions in general and those legislative and legal bodies responsible for their enactment and enforcement.
However, the public’s acceptance of bootlegging – that segment of the
population that was largely urban, more often ethnic in its origin, and inclined to
resist the government’s intervention in their personal lives – was not without
serious consequence. Because illicit alcohol offered such enormous financial
returns relative to the minor investment involved, it became especially attractive
to existing criminal networks whose profits until that point in time were derived
primarily from such illegal activities as gambling, prostitution, and extortion. A
substantial portion of these proceeds was used to advance the interests of these
underworld networks in the highly competitive environment in which they typically
conducted their business and among the politicians and other officials whose
favor and protection they curried in exchange for infusions of cash and services
in which “whole police departments, federal agents, judges, prosecutors – the
entire electoral process [were] implicated to one degree or another.”44
Prohibition and the enormous profits it generated thus profoundly influenced the relations between the underworld and those with whom it dealt, shifting the very center of power away from the politicians who customarily wielded it and, in
44 T. J. English, Paddy Whacked: The Untold Story of the Irish American Gangster (New York: ReganBooks, 2005), 200; Humbert S. Nelli, “American Syndicate Crime: A Legacy of Prohibition,” Edited by David E. Kyvig, Law, Alcohol, and Order: Perspectives On National Prohibition (Westport, CT: Greenwood Press, 1985), 125.
367 some instances, overseeing the functioning of local government and transforming entire local economies. It was this situation, perhaps more than any other factor, that undermined what remained of concurrent policing, redirecting the attention of local communities and increasingly concerned state governments to the more compelling and agonizing task of redefining the role of the police in the changed and changing conditions of the communities they serviced, an task that would ultimately alter the very purpose of American policing and with it, the significance of federal law enforcement.
A New Age of Law and Order
Given the complex nature of the controversy surrounding national prohibition, it is hardly surprising that it would be identified as the principal source for much of the postwar era’s lawlessness. In actual fact, however, most
Americans who contemplated the root causes of crime and its remedy in the postwar years continued to think, as they always had, in terms of local conditions and local crime suppression resources and responsibilities. In the aftermath of the First World War, crime had risen dramatically, punctuated on occasion by bursts of industrial and racial conflict or surging forth in great waves, but always at the expense of the public’s confidence in those institutions upon which they depended for the enforcement of law, the preservation of order, and as symbols of rectitude. This threat, whether perceived as a breakdown in the nation’s social institutions and respect for older values or as the result of the country’s growing homogeneity and burgeoning urban growth, produced a response that drew heavily from the nation’s progressive traditions and was as diverse in its focus
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and organization as were the local conditions it was intended to address.
Throughout this process, those who stood at the forefront of these efforts – civic
leaders, crime commissions, local associations, philanthropic organizations,
police reformers, and even the media of the day – struggled to resolve their crime issues within a political environment that remained relatively detached from, sometimes hostile to, the possibility of federal intervention. For these groups and their constituencies the real source of the problem they faced was to be found in the growing contempt for law and order increasingly discernible in the attitudes and behavior of their fellow citizens, both the “law-abiding” and the criminal alike.
There was, as Morton Keller once noted, a pervasive contradiction in
American thinking about crime, a “paradoxical inclination of Americans to be uniquely inclined to impose social restrictions yet uniquely tolerant of law- breaking,”45 a phenomenon that called for a delicate balance between, on the
one hand, the restraint imposed in the interest of preserving important communal
values and options and, on the other, the freedom to exercise and to pursue
those principles of personal liberty and initiative that were a part of the nation’s
political ideology and seen as fundamental to its well-being. For all intents and
purposes, the task of maintaining this balance was increasingly understood as
one of the essential responsibilities of those governmental institutions upon
which Americans relied to administer justice and to offer the protection of society.
What mattered was whether those officials, both elected and appointed, who
bore this responsibility were acting in such a way to merit the public’s
45 Morton Keller, Regulating A New Society: Public Policy and Social Change In America, 1900- 1933 (Cambridge: Harvard University Press, 1994), 163.
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confidence46 – a question which, in reference to the preservation of order, could
carry no greater relevance than in its application to the condition of every day life
for the largest number of the nation’s citizens. It is this issue, then, that largely
explains why growing numbers of Americans in the 1920s and early 1930s were
so sensitive to the troubling images of crime, criminals, and the disorder
attributed to both and so willing to explain this phenomenon in terms of the
official complicity they suspected and the incompetence they could no longer
ignore. How this frustration and fear was converted into a climate favorable to
reform and to the acceptance, if not demand for, significant changes in the very
concept of American policing – its transformation from a role stressing conformity
of behavior to one emphasizing procedural regularity, professional detachment,
and keeping apace with the expanding definition of crime – constitutes the real
story behind the so-called “crime wave” of the 1930s. It was this fear of rising
crime that provides the framework within which this transition can be understood
as a major realignment of the relational roles of local and federal law enforcement that very carefully avoided any confusion over their distinctive jurisdictional responsibilities while acting in concert to craft a new image of
‘modern” crime fighting
For the police, progressive era reforms had been relatively modest in their effect, the changes being primarily administrative in nature. The emphasis placed on managerial “efficiency” had not improved the manner in which the police were recruited and trained nor had it eliminated the kinds of petty
46 Carrott, “The Supreme Court and Law and Order In the 1920’s,” 19; Richard Gid Powers, “One G-Man’s Family: Popular Entertainment Formulas and J. Edgar Hoover’s F.B.I.,” American Quarterly 30, no. 4 (Fall 1978), 476.
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regulations - “peculiarly contrived and arbitrarily enforced” - to which the rank and
file were subjected.47 Applicants for employment or promotions continued to
exploit their political connections, “recruits still received cursory training, and
patrolmen still ignored rules with impunity.”48 Graft and payoffs were
commonplace, though the practice paled in comparison to the greater corruption to be found in city government. For the individual officer, maintaining order in the community’s streets and public areas, a responsibility that was regarded as both a priority and a measure of his effectiveness, required the exercise of one of three options, either persuasion, intimidation, or arrest. It was a time when confessions or statements tending to incriminate others represented the most
sought after evidence in any investigation, and in order to obtain it, force or other
forms of coercion were routinely employed. Few people objected to the practice as long as it was limited to those who were believed deserving of the attention, members of the “criminal class.” More often than not, however, it was this
relative ease with which the police resorted to the use of force that gave policing
its thuggish quality and reflected badly, though sometimes accurately, on the quality of policing many communities received. Among policemen and the public
alike, there was “little conception of policing as a profession or a science to be
nurtured and developed:”It was understood to be no more than a job, to be
“worked without imagination or aim.” As a result, the style of policing that
emerged from such conditions incorporated a unique blend of experience and
47 Clayton J. Ettinger, The Problem of Crime (New York: Ray Long & Richard R. Smith, Inc. 1932), 263; Edward Conlon, Blue Blood (New York: Riverhead Books, 2004), 84. 48 Robert M. Fogelson, The Professionalization of the Police: An Essay On the Limitations of Institutional Change In Urban America, 1890-1970 (Springfield, VA: National Technical Information Service, Department of Commerce, 1970), 11.
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self-reliance that not only distanced “the police from the legal system and the
public” at a time when society was beginning to demand greater adherence to
law and procedural rule, but, in reducing “police sensitivity” to the larger
implications of the police officers’ conduct, left them increasingly vulnerable and
unable to adjust to the profound changes that were reshaping the communities
they policed.49
By the early 1920s, the most prevalent forms of policing throughout the country, whether urban or rural in setting, were beginning to show serious signs of deterioration in the face of significant social, economic, and technological change. The nation’s cities, more densely populated, more ethnically diverse, and more socially stratified than ever before, and now encompassing, through the extension of mass transit systems and the introduction of the automobile, increasingly larger peripheral areas, presented an entirely new set of challenges for which the older methods of policing were clearly unsuited. Worse yet, these changes offered many new incentives to the criminal element and provided opportunities to expand their activities beyond customary boundaries to include areas once considered beyond the influence of urban life and culture.50 Prior to
the onset of prohibition, for example, gambling provided the most popular of all
the enterprises in which criminals and criminal organizations were engaged. It
took on many forms, but the one that soon drew the largest number of
49 David R. Johnson, Policing the Urban Underworld: The Impact of Crime On the Development of the American Police, 1800-1887 (Philadelphia: Temple University Press, 1979), 187; John A. Gardiner, The Politics of Corruption: Organized Crime In an American City (New York: Russell Sage Foundation, 1970), 2-3; Ettinger, The Problem of Crime, 270; Mark H. Haller, “Historical Roots of Police Behavior: Chicago, 1890-1925,” Edited by Kermit L. Hall, Police, Prison and Punishment: Major Historical Interpretations (New York: Garland Publishing, Inc., 1987), 317. 50 Johnson, Policing the Urban Underworld, 3-4.
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participants involved betting on horse races, an activity that grew dramatically
following the invention of the wire service, a technology that afforded far greater
access to a larger segment of the public and, because it served a legitimate
function as well, was more useful in concealing the very kinds of activity that police methods were designed to detect and suppress.51 The problem of policing
had clearly become more complex: requiring a level of innovation and
organizational restructuring for which there was no precedent and to which
contemporary police forces, in the absence of qualified and knowledgeable leadership, could only aspire, assuming, of course, that they could even begin to recognize the true dimension of the challenges with which they were confronted.
The growing sophistication and innovative capabilities of criminal
organizations rendered many of the assumptions upon which policing was
premised useless as effective strategies for crime suppression, a growing
realization that brought unwanted attention to what would soon become identified
as the most likely source of the “crime problem,” the police themselves. The
great irony was that of all the problems with which the police were confronted,
none were to distort their mandate more than the very assumptions that had long
defined their role as one of preserving certain basic societal values and enforcing
conformity to acceptable standards of behavior. As society became more
diverse, its values more uncertain or difficult to ascertain, and as crime became
more organized and more deeply rooted in the social structure, the “crime
prevention” model that characterized local law enforcement lost its focus and,
51 English, Paddy Whacked, 96-97.
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ultimately its rationale.52 Unable, therefore, to adequately control certain kinds of
criminal activity, particularly bootlegging, gambling, and extortion, the police
turned instead to the suppression of more familiar forms of crime, a preference that seemed increasingly at odds with the new image of crime and one that relied
heavily upon practices, including wholesale arrests or “roundups” and the “third
degree,” that were viewed with growing disfavor and largely discredited, given
the large numbers of persons released for want of evidence, as crime control
devices.53 Accused of acting in disregard of the law, of exercising double
standards, and of being unable to properly discharge their duties, the police, convinced that such disrespect was indisputable evidence of society’s eroding moral values and discipline and, therefore, a significant factor in the rise of crime,
responded ever more aggressively and ever more unsuccessfully to achieve
what they were neither organized, nor prepared to accomplish.54
The dissatisfaction and uncertainty that permeated public opinion
regarding the role of the police in American society inspired what one writer
described as “an era of self-analysis, comparison, and improvement.” That
process of examination assumed several different forms, depending on its
52 “To ask police to prevent crime assumes that the police can identify potential offenders and on the basis of such identification, act in such a way as to prevent crime. The whole ideology provided motivation for subverting any person or group perceived as potential offenders.” Eric H. Monkkonen, Police In Urban America, 1860-1920 (New York: Cambridge University Press, 1981), 158-159. 53Richard C. Lindberg, “To Serve and Collect:” Chicago Politics and Police Corruption From the Lager Beer Riots to the Summerdale Scandal (Westport, CT: Praeger, 1991), 152; Christopher Hibbert, The Roots of Evil: A Social History of Crime and Punishment (Boston: Little, Brown and Company, 1963), 355. 54David E. Ruth, Inventing the Public Enemy: The Gangster in American Culture, 1918-1934 (Chicago: The University of Chicago Press, 1996), 30-34; Richard A. Leo, “From Coercion to Deception: The Changing Nature of Police Interrogation In America,” Crime, Law and Social Change 18 (1992), 38; Eugene J. Watts, "Police Response to Crime and Disorder in Twentieth- Century St. Louis," The Journal of American History 70, No. 2 (September 1983), 342.
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motivation and outlook, but provided for a more intensive and far-ranging review
of virtually every aspect of the nation’s police, court, prosecutorial, and
correctional systems. Of greater significance were the contributions it made to a
“climate of attitudes and ideas” within which a relatively new approach to law
enforcement, that of “crime control” as opposed to the older doctrine that
invested police resources into the preservation of communal norms and moral values, emerged as the principal orientation and function of law enforcement.55
The issues that arose from public concerns over crime attracted social scientists, philanthropic organizations, and men from within the ranks of the police themselves who, whether individually or through increasingly influential association, would destined to reshape professional thinking about police management and crime control. First to direct attention to the subject were the privately operated and financed “crime commissions” that began to appear in cities throughout the Northeast primarily very soon after the end of World War I.
A legacy of the progressive age and reflecting many of its values with respect to the application of “expert” or “scientific” knowledge, these early commissions were the product of the combined efforts of local businesses and community leaders, most of whom were intimately familiar with the data collection and evaluative techniques that became the mainstay of the commission movement.
These early organizations were different from their predecessors in several important respects: first, because they were on-going and considered semi-
55 Nathan Douthit, "Police Professionalism and the War Against Crime in the United States, 1920- 1930s," Edited by George L. Mosse, Police Forces In History (London/Beverly Hills: Sage Publications, Inc., 1975), 318; Barbara R. Price, Police Professionalism: Rhetoric and Action (Lexington, MA: D. C. Heath & Company, 1977), 85.
375
permanent, they were in a unique position to place constant pressure upon both
city and police administrations to accept the legitimacy of an entirely new criteria
upon which to measure the effectiveness of police policies and practices.
Surveys, fact-gathering, and the interpretation of statistical outcomes had
become the discourse of public life, and the crime commissions were to prove
instrumental in gaining acceptance of the use of such techniques to determine
crime trends, to identify problem areas, and to ensure greater accountability.
Second, their perspective on the problem of crime was not limited to policing.
The commissions were interested in the workings of the courts and the
prosecutors and devoted special attention to prisons and parole services. This
approach was among the first to recognize the inter-relatedness of all the
agencies involved with crime suppression and to place the functions of the police
in a larger and less political context, a factor that would become an important
element in the modern definition of policing. Finally, the commissions did not
have to contend with many bureaucratic considerations and were, therefore,
disposed toward giving less weight to the more formal constraints with which the
police were burdened. They were, as a result, more inclined to emphasize the
advantages to be derived from inter-agency cooperation and coordination, a view
that minimized jurisdictional distinctions and popularized the notion of joint
action.56
Most of the crime commissions that operated in the nation’s cities during the 1920s reflected a “hard-line deterrence perspective” that questioned the
56 Douthit, "Police Professionalism and the War Against Crime in the United States, 1920s- 1930s," 320.
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value of then prevailing theories respecting the environmental, sociological, and
psychological origins or causes of crime. The crime commissions had, after all, been formed with but one purpose in mind: to improve the efficiency, as measured by the outcome (arrests and convictions), of the agencies, particularly the police and the prosecutors, responsible for the suppression of crime.
Questions concerning the motivation or rehabilitation of criminals were, given the commissions’ purpose and methods, of little significance, an approach that struck a certain resonance with a public whose perspective on crime, now a major preoccupation, was rapidly changing and increasingly being translated into demands for more and better law enforcement.57 For the commissions and their
staffs of researchers and court monitors, the sole purpose of their work was the
reduction of crime, a goal, they believed, that could be achieved by no other
means than through the improvement of the rate of apprehension and the likelihood of conviction and just punishment. Guided by their objective, the commissions became actively opposed to such practices as plea bargaining, which they regarded as evidence of corruption and undue influence in the operation of the courts.58 They also recommended important changes in policy,
including such measures as limiting grants of probation and adopting determinate
as opposed to indeterminate sentencing schemes. But their greatest
57Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism (Lexington, MA: Lexington Books, 1977), 125, 128; Michael Willrich, “The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930,” Law and History Review 16, no. 1 (Spring 1998), 107; Raymond Moley, Politics and Criminal Prosecution (New York: Minton, Balch & Company, 1929), 233. 58Mark Haller, “Urban Crime and Criminal Justice: The Chicago Case,” Edited by Kermit L. Hall, Crime and Criminal law: Major Historical Interpretations (New York: Garland Publishing, Inc., 1987), 633; John F. Padgett, “Plea Bargaining and Prohibition In the Federal Courts, 1908-1934,” Law and Society Review 24, no. 2 (1990), 414-416.
377 achievement was in helping to reverse a trend that had become more closely associated with the progressive era’s fixation upon and more rehabilitative approach to the maintenance of order,59 a perspective on policing that placed greater value on peace-keeping within the community than in the detection of crime and crime control. To a great extent, this new perspective reflected something more than a mere acknowledgement of changed conditions, it signified a greater acceptance of the place of ethnic and racial divisions in
American society and wider recognition of the tensions that would naturally result. The root of the problem lay with the assumptions that guided the nation’s traditional approach to policing, especially urban policing, an arrangement that relied heavily upon the prevalence and strength of a single set of values and social conventions to provide the police with the moral authority they required to impose order within a community. In the postwar era, however, these standards or values proved to be far less prevalent or forceful as they had once been. In a very real sense, the police, having organized themselves around and having developed their approach to policing on the basis of that authority were left with the task of redefining themselves, a challenge for which they were not equipped.
The unrelenting criticism with which the crime commissions addressed the weaknesses of law enforcement in their communities was especially significant, not only because it attracted an audience increasingly receptive to their emphasis on accountability, but because it helped to establish a more credible
59 “Between 1909 and 1915, the number of states that had adopted probation as an administrative tool of criminal justice had risen from 6 to 33. By1920, 40 states had parole laws. In 1900, there were only five states that had indeterminate sentencing laws. Twenty years later, there were thirty seven.” Douthit, "Police Professionalism and the War Against Crime,” 321.
378
foundation for what would eventually became recognized as a new and more
“efficient” style of enforcement, one which would adopt the measured fluctuations in the crime rate both to resolve basic issues concerning what was to be the proper function of the police and to change the way in which the public actually thought about crime control.60
Soon to become the central feature of this new concept of law
enforcement was the idea of “scientific policing,” a phrase that conveyed far more meaning and expectation in the 1920s and 1930s than it does today. Together, the words “scientific” and “policing” conjured up images not only of a more focused style of policing, that of “crime-fighting,” but also of an entirely new kind of policeman, the “professional,” as familiar with “the microscope or polygraph,” the criminal code or criminal investigation, as he was capable of dealing
“humanely and sympathetically with lost children, beaten wives, and bereaved parents.”61 Foremost in the advancement of this relatively new conceptualization of policing were the police organizations and reformers whose struggle to transform policing would receive, in 1931, the endorsement of a national commission and whose ideas concerning the appropriate use of police resources would provide the basis upon which a new rationalization for state-federal law enforcement would be formulated. But before that could happen, the police, hard-pressed to counteract their reputation for corruption, “questionable deportment,” and incompetence, would have to find some way of restoring public
60 Peter K. Manning, “The Police: Mandate, Strategies, and Appearances,” Edited by Jack D. Douglas, Crime and Justice In American Society (Indianapolis; New York: The Bobbs Merrill Company, Inc., 1971), 169. 61 Philip J. Stead, Pioneers In Policing (Montclair, NJ: Patterson Smith, 1977), 180.
379
confidence in their ability to respond to these new crime trends.62 Responding
directly to this challenge was the International Association of Chiefs of Police, an
organization which, since its founding in 1871, had encouraged the kinds of
professional and social relations that could foster and facilitate communication and cooperation among its membership.63 Under increasingly aggressive leadership, the IACP assumed a more ambitious agenda and became one of the more widely recognized and respected voices for police reform. Through the resources of its constituent organizations and with the approval and support of established police networks in Ohio, Pennsylvania and New York, the
Association set out to achieve greater uniformity in police procedure and higher standards of performance, a still sensitive issue given the prevailing influence of politics in the administration of many of the nation’s police forces. Like most occupational associations of its time, the IACP tended to view the problems confronting the nation’s police in terms of its own specific function, that of unification and innovation, and to have greater faith in the collective ability of its membership to resolve them. Toward this end, the IACP, increasingly informed by the ideas and the influence of resources that lay outside of traditional police circles, set out to revitalize the links between municipal police departments and,
62 Lawrence Rosen, “The Creation of the Uniform Crime Report: The Role of Social Science,” Social Science History 19, no. 2 (Summer 1995), 230. 63 The IACP was formed by local law enforcement officials who were attending the first ever National Police Convention. Organized by the chief of police of the City of St. Louis, the attendees discussed a number of topics of mutual concern, including the establishment of uniform crime records, juvenile delinquency, prostitution, and alcoholism. Most were convinced that the increases in crime which they were experiencing were attributable to the Civil War, and they were eager to find some method of preserving the channels of communication they had established during the course of the conference. Not until the 1930s, however, would the organization establish a dominant place among existing police organizations or even a permanent staff to bring planning capabilities and continuity to its work. Lent D. Upsom, “The International Association of Chiefs of Police and Other American Police Organizations,” The Annals of the American Academy of Political and Social Science 146 (November 1929), 122, 127.
380
by heightening awareness of the more technical dimensions of police work, to
encourage a sense of police community and professionalism. It wasn’t until the decade of the 1920s, however, that the Association began to achieve some headway toward this particular goal.
By the mid-1920s, disparagement of the nation’s police had become so commonplace and had reached such a level of intensity as to have made the issue of the “efficiency” of local law enforcement a matter of near national concern. Contemporary scholars, police reformers, and police associations were divided over the best way to approach the issue, a problem made even more difficult by the increasingly reactionary response of the police themselves, the latter being more inclined to impugn the suspected motives of their critics or, worse, to dismiss any public debate regarding possible improvement of the police as missing the real key to reform, i.e., eliminating political influence in police operations and organization. From the beginning, the controversy concerning police “efficiency” had been framed by questions regarding both the quality of the recruit attracted to police work and the aptitude of those who were responsible for overseeing his deployment. In the 1890s, a series of scandals had rocked the police departments of several of the nation’s largest cities and were followed by investigations of police graft and corruption that inspired comparisons between
European and American police forces. Public interest in the matter remained high. Between 1902 and 1917, numerous articles, many extolling the superior quality of the European police, began to appear in publications of general circulation, and published works on criminal anthropology and the new field of
381 police management became more widely available through committees established under the auspices of the National Conference on Criminal Law and
Criminology.64 Greater interest in police reform was also stimulated by growing demands for police surveys and other related projects that became critical to the work of the crime commissions that were especially active during this period.
It wasn’t, however, until the publication of American Police Systems65 in
1921 that issues concerning the recruitment and training of individual police officers jumped to the forefront of the debate over how best to improve local police organizations. This seminal work, which suggested that many of the problems facing the police originated with their own questionable abilities to meet the growing demands of police work and was more likely to reflect the absence of any commitment on their part to the development of their profession, underscored the critical importance of recruit selection and education to police reform. Most police officers at the time were relatively uneducated, received little or no training in connection with their duties, and were often confused as to what was actually expected of them. Police work was not necessarily seen as requiring any greater level of skill or any more aptitude than could be expected from that associated with any other job. The prevailing assumption, in fact, was that anyone who was not physically impaired could be expected to perform the work without difficulty. This perception of policing was undoubtedly reinforced by the patronage-controlled hiring practices that were widely used to staff municipal
64Fogelson, The Professionalization of the Police, 62; Ethan A. Nadelmann, Cops Across Borders: The Internationalization of U.S. Criminal Law Enforcement (University Park: The Pennsylvania State University Press, 1993), 87-88. 65 Raymond B. Fosdick, American Police Systems (New York: Century Company, 1921)
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police forces. For years, the struggle to improve local police organizations
vacillated between one approach that emphasized the benefits to be derived
from a more effective organizational oversight of police operations and another
that stressed the positive and probable consequences of attracting a better class of recruit. But for the larger and conflicting meanings that were attached to each,
one need never have been juxtaposed against the other. Even as the advocates
of both approaches recognized that practically every decision respecting the
appointment, promotion, and dismissal of the individual policeman was dictated
by chiefly political considerations, they differed as to which approach could better
immunize the police from the influence of politics or criminal association and
which would more likely contribute to a more effective policing.66
In their efforts to subject the police to some degree of organizational
reform, the progressives had originally sought to improve the actual enforcement
of the law by making the police increasingly responsive to bureaucratic
procedure, more uniform and predictable in their application of the law, and less
vulnerable to political interference. Unlike those who represented the new strains of reform that emerged from the nation’s postwar experience with riot, lawlessness, and organized crime, the progressives, given their narrow understanding of policing as little more than a device for the maintenance of public order, had little reason to be concerned about the growing necessity for a
more complex definition of policing, one that better suited the complexities of a
66 John T. Krimmel, “The Performance of College-Educated Police: A Study of Self-Rated Police Performance Measures,” American Journal of Police 15, no. 1 (1996), 86; Fogelson, The Professionalization of the Police, 5; Frederick S. Calhoun, The Trainers (Glynco, GA: Federal Law Enforcement Training Center, 1996), 4
383
modernizing and technologically driven society. In contrast to the progressives, this new version of reform was faced with the challenge of reinventing police doctrine, a working concept that not only explained what role law enforcement
would perform, but which also made that role especially relevant to modern
conditions and effective as an instrument for fighting new trends in criminal
behavior and organization. To achieve that goal, this new reform movement
would enthusiastically embrace the cause of police professionalism as its principal organizing tool, a rallying cry that was intended to raise the self-esteem of policemen everywhere and to assure a somewhat skeptical public that a new day in the struggle to control crime had arrived.
Few of the changes that occurred during the immediate postwar period, however, would have as much impact upon the role of the police as did the growing complexity and the rising incidence of crime. The advent of prohibition offered enormous rewards to those who dominated the manufacture and distribution of illicit alcohol and who obtained some measure of immunity from prosecution through the political and legal resources they were able to control. It helped, of course, that there was a lack of a consensus regarding prohibition enforcement or that crime in general was becoming a more “subtle and complex
cultural phenomenon,” that is, increasingly indistinguishable from more legitimate
pursuits or disguised in its form. In the face of such divided public opinion over
prohibition enforcement and lacking resources of their own with which to make
the policies and practices upon which they depended more responsive to
changes in the nature of crime, the police resorted to a policy of acquiescence or
384
effected a certain detachment that weakened their authority and threatened to
undermine their law enforcement mandate.67 For the police reform movement in
this new era of law and order - and no one personified it more during its early
period than did August Vollmer - the changing nature of crime could only be met
by law enforcement officials who were as intelligent and innovative as any
criminal.
August Vollmer had become chief of the Berkeley, California, police
department largely on the basis of his organizational skills and increasingly
recognized expertise in police management and training. As Vollmer’s reputation
grew, so, too, did his influence within a broader movement within policing that
was dedicated not only to raising the status of police work to that of a profession,
with its own unique body of knowledge and specialization, but to utilizing the real
“potential of scientific management” as a means of resolving, in the face of the
issues and distractions created by the prohibition controversy, police problems.68
In Berkeley69 and, later, in Los Angeles, Vollmer introduced a number of
significant changes in the way the department operated, imposing higher
entrance standards, arranging for the use of intelligence tests (the Army’s Alpha
67 Alan Block, East Side – West Side: Organizing Crime In New York, 1930-1950 (New Brunswick, NJ: Transaction Books, 1983), 1; Peter K. Manning, “The Police: Mandate, Strategies, and Appearances,” Edited by Jack D. Douglas, Crime and Justice In American Society (New York: The Bobbs-Merrill Company, Inc., 1971), 170-172. 68 Nathan Douthit, “August Vollmer, Berkeley’s First Chief of Police, and the Emergence of Police Professionalism,” Edited by Eric H. Monkkonen, Crime and Justice In American History (New York; London: K. G. Saur, 1992), 101; Joe Domanick, To Protect and To Serve: The LAPD’s Century of War In the City of Dreams (New York: Pocket Books, 1994), 48; Calhoun, The Trainers, 7-11. 69 Vollmer, who taught at the University of Berkeley during his term as chief, personally recruited students and recent graduates for his force, utilizing their talents to establish new investigative and crime analysis techniques and organizing them into special units whose reputation for integrity brought them to the attention of one of the state’s most aggressive anti-vice prosecutors, Deputy District Attorney (and later Governor and Chief Justice of the Supreme Court) Earl Warren.
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Intelligence Test), establishing a formal training program, and providing personnel for the collection of criminal statistics, all steps that brought him to the attention of the IACP, which elected him the Association’s president in 1922.
Through conventions and police journals, meetings of local and state associations, the nation’s police were actively involved in sharing views regarding new methods and technologies relevant to evidence collection and police management. But such exchanges, while implanting the value of management principles concerning personnel evaluation, functional specialization, and manpower deployment among the upper echelons of the police, were neither systematized, nor able, in the absence of public support and greater interest on the part of governmental funding sources, to have any noticeable effect upon policing or, more to the point, the rising incidence of crime.70
Almost from the beginning, the reformers’ efforts to modernize the police through administrative reorganization and raised standards of recruitment met with resistance, not the least of which came from the police rank and file who
“scorned the pretensions of professionalism” and generally supported, as did many department chiefs, police commissioners, and city governments, the more traditional, peace-keeping approaches to law enforcement.71 Alongside this seemingly insurmountable obstacle was yet another, that of translating the reformers’ conceptualization of professionalism into terms that presented a realistic strategy for combating crime and would, therefore, likely appeal to a far wider audience. Certainly the specter of a better paid, better trained, and more
70 Philip J. Stead, Pioneers In Policing (Montclair, NJ: Patterson Smith, 1977), 210. 71 Monkkonen, Police In Urban America, 1860-1920, 136.
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disciplined police force, free of graft, disinclined to use force in an excessive
manner, and committed to enforcing the law fairly and uniformly, was a goal
worthy of the public’s attention and support. How would such an improvement be
able on its own to temper or suppress the activities of criminals who were
increasingly better organized, more mobile, and more experienced in exploiting a
political structure and economy that offered them countless opportunities to advance their own interests and influence free from detection was an entirely different question. In the late 1920s and early 1930s, this question - what, amidst rapidly changing social and cultural conditions, was the most appropriate role for the police in American society - acquired a special urgency.72 Against a
backdrop of mounting concern over the failings of national prohibition and
general lawlessness, the continuing revelations concerning police misconduct
and ineptitude, accompanied by a diminished confidence in the criminal justice
system as a whole, took on an increasingly ominous significance. In New York –
where the unmasking of ties between city officials and the criminal underworld in
1929 led two years later to a wider investigation and indictment of the city’s
judiciary and police73 – and other major cities, where similar scandals revealed strong evidence of police corruption, growing disaffection with the police was greatly exacerbated by the embittering experience of financial collapse, failed institutions, and economic depression, the last serving as a catalyst for
72 Fogelson, The Professionalization of the Police, 7-14. 73 Block, East Side – West Side, 29.
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sometimes inappropriate and certainly a more aggressive police response to
rising disorder, protest, and labor conflict.74
One of the most remarkable consequences of this renewed, though highly
critical interest in policing was the degree to which the responsibility for effecting
meaningful reform was concentrated in the hands of the police themselves.
Stung by the well documented criticism directed against them by President
Herbert Hoover’s National Commission On Law Observance and Enforcement
(the Wickersham Commission) and the observations of those state and municipal commissions that were established in the wake of the Wickersham Commission’s published findings regarding the nation’s police, police department administrators began the slow and laborious work of transforming their departments into organizations that more closely resembled the public’s idealized version of a police force capable of applying the latest advances in technology in pursuit of the lawbreaker.75 The effect of these revelations regarding the incompetence, disinterest, and dishonesty among police officers was, in fact, quite profound and
forced police administrators to reexamine the very nature and effectiveness of
their own management styles and techniques. The Wickersham Commission had
openly questioned the ability of the nation’s police chiefs to demonstrate, in light
of their customary brief tenure in office and other political considerations that
affected their ability to function, any appreciable skill in handling the growing
intricacies of management and other issues concerning the most effective use of
74 Frank Donner, Protectors of Privilege: Red Squads and Police Repression In Urban America (Berkeley: University of California Press, 1990), 44-45. 75 Abraham S. Blumberg and Arthur Niederhoffer, “The Police in Social and Historical Perspective,” Edited by Abraham S. Blumberg and Arthur Niederhoffer, The Ambivalent Force: Perspectives On the Police (San Francisco: Rinehart Press, 1970), 23-24.
388 the police resources available to them. But even where police administrators had attempted to modernize their departments, the new technologies and methods they had employed only resulted in the creation of numerous functional specialties, all of which demanded even more intense supervision and coordination in order to ensure optimal results. The real challenge, it appeared, lay in finding an adequate means with which to measure the effectiveness of the police in suppressing crime, more to the point, statistical information that could be used to identify problem areas, help orient resource and manpower allocations, and, most importantly, serve as “an index of their success” in achieving departmental goals.76
In 1905, the IACP, which was then struggling to acquire a more comprehensive picture of the incidence of crime nationwide, had approached the
Bureau of Census for assistance in organizing and conducting a national crime survey. Even if the Bureau had been willing to comply with this request, the data would not have been available as virtually none of the country’s police departments were in the practice of collecting information relevant to their function as peace-keepers, a role for which such data, it was widely believed, could serve no useful purpose. Growing enthusiasm for the value of record keeping, however, a major innovation of the progressive era among public agencies, encouraged the IACP to again pursue its original interest in developing a standardized crime data reporting system, but it did not possess the expertise to resolve the technical difficulties posed by the scope of such an endeavor and ultimately lacked the authority to ensure compliance. In the 1920s, renewed
76 Manning, “The Police: Mandate, Strategies, and Appearances,” 169.
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interest in police reform focused attention upon the potential value of records and
data collection as an evaluative tool and invited the involvement of organizations
unaffiliated with the police, chief among them the Laura Spelman Rockefeller
Memorial and Social Service Research Council, which had provided vital support
and sponsorship of one of the nation’s best known crime surveys, the 1926
Cleveland Crime Survey. Acting jointly, the two organizations were able to
promote this idea in a context that suggested applications that went well beyond
a nationwide crime reporting system.77
The development and use of crime data won quick acceptance among the
nation’s police forces and was entirely consistent with the goals of the country’s
leading police reformers and police associations. Such information not only
made an important contribution to their ability to track crime trends, but, far more
significantly, provided a “rational and ‘scientific’ way” to measure the actual
effectiveness of the police in controlling crime, an approach that increasingly
shifted police attention from their order maintenance function to the detection and
apprehension of criminals as a measure of their success as an organization.78
The latter was an especially noteworthy development for several reasons, all of which would combine to produce an entirely new environment for local policing:
First, it imbued basic police work with a characteristic that was entirely objective and non-partisan in meaning – a quality that, by affirming the existence of a technical, even “scientific” aspect to policing, placed some facets of the policeman’s role beyond political manipulation and provided a measure of
77 Rosen, “The Creation of the Uniform Crime Report,” 222-223, 225. 78 Ibid., 231.
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independence that was critically essential to the evolution of police
professionalism. “Professionalism: promised to transform police work into a full-
time career, free from political manipulation, with a commitment to abstract ideals
of police service and an organized body of scientific knowledge.”79 The
increased reliance of the police upon social science methodologies and theory
(along with their adoption of business management techniques and investigative
technologies) and their growing commitment to highly centralized and
increasingly uniform systems of control clearly aided the nation’s police chiefs
and their subordinates in distancing themselves from many of the political
constraints under which they had traditionally functioned and in exercising their discretion in devising and implementing enforcement policies of their own choosing.80 Second, as professionalization became the dominant trend in the
1930s, police organizations, now subject to being evaluated on the basis of their
increasingly measurable performance, focused instead upon a mode of
enforcement that allowed them to avoid “grappling with the difficult issue of
defining the ends of police work and the operational means of accomplishing
them” and to deal directly with that which was more within their control, “the rate
of crime, not its reasons.”81 Under such pressures, Vollmer’s perspective on
policing rapidly lost ground.
79 Eugene J. Watts, “Cops and Crooks,” Edited by Robert H. Bemner and Gary W. Reichard, Reshaping America: Society and Institutions, 1945-1960 (Columbus: Ohio State University Press, 1982), 285. 80 Domanick, To Protect and To Serve, 49; Gene E. Carte and Elaine H. Carte, Police Reform In the United States: The Era of August Vollmer, 1905-1932 (Berkeley: University of California Press, 1975), 118; Walker, A Critical History of Police Reform, 59-60. 81 Manning, “The Police: Mandate, Strategies, and Appearances,” 169.
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The influence of the early progressive reformers on that perspective, the
manner in which it reaffirmed the social dimensions of policing, had long been
evident in the emphasis Vollmer had placed upon the necessity and importance
of developing “crime prevention programs” with which to remedy the very sources of crime. Mindful that no other agency was closer to, or, as he often
argued, in a more advantageous position to deal with, conditions believed
responsible for criminal behavior, Vollmer had been adamant in his insistence
that it was the police, more than any other public agency, that were the “logical”
choice for coordinating the community’s resources in the prevention of crime.82
But the realities of policing presented more difficult and persistent challenges.
Those upon whom the responsibility for reforming or managing the police were eventually compelled to accept a more conservative, narrow, and pragmatic approach to the task of transforming their departments into modern crime-fighting organizations, an approach more devoted to accomplishments that fell within the realm of possibility than without: objectives that could not fail but to take into account the organizational and contextual limits of policing. “Interventionist crime prevention or the policeman as a crime-fighting generalist” was increasingly being rejected as strategies or approaches to enforcement that could guarantee organizational success.83
Over time, a growing consciousness arose among police officials
regarding the special and unique role they performed, as well as the
responsibilities they held in common, that encouraged many of them to embrace
82 Douthit, “August Vollmer, Berkeley’s First Chief of Police, and the Emergence of Police Professionalism,” 111-112, 115. 83 Stead, Pioneers In Policing, 212.
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the state compacts, mutual assistance agreements, and other improvised
arrangements that helped to overcome the jurisdictional distinctions and limits so characteristic of the nation’s highly decentralized system for law enforcement.
Even as the federal government became increasingly concerned about the rate
of crime, those federal agencies responsible for federal law enforcement showed little inclination and were provided with few incentives to become involved with social problems that were so clearly a matter of local concern and resolution.
The increased importance of the police in the preservation of local order and the authority of local institutions provided them with a rationale that could neither be usurped by, nor delegated to the federal government or its law enforcement agencies. It was, rather, the growing image of police professionalism, its efficiency, its emphasis upon integrity and service, which provided the enforcers of law - local, state, and federal - with a model form of policing that had the potential, as did none that came before it, to facilitate a level of coordination and achievement that would be critical to the restoration of the reputation of law enforcement in this nation and essential in the establishment of a new era of law
and order.
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Chapter 9
STRUGGLING FOR BALANCE
With these constitutional limitations it is clear that the main problem of administering criminal justice is a local one. Unless we are prepared to change our dual system of government, build up an enormous central bureaucratic police force at Washington and turn over to the federal government the main powers and functions that have been reserved to the states, including the general power to deal with crime, it will continue to be mainly a state responsibility. William D. Mitchell, Attorney General, 19321
The history of the administrations of Presidents Herbert Hoover and
Franklin D. Roosevelt, generally perceived as a study in contrasts, nonetheless provides some evidence of continuity, if not in terms of the specific policies embraced by each, than in some of the principles that influenced their implementation. One such assumption, which profoundly affected the anti-crime initiatives to which both presidents openly pledged themselves, acknowledged the role of the states as the principal guarantors, in the nation’s federalist system, of the safety of their citizens from the “depredations” of crime. In the years between 1928 and 1936, while the virtues of local self-government remained undiminished in their appeal and influence in government policy-making, the federal government’s commitment to the preservation of a system of law enforcement that placed primary responsibility for the suppression of crime upon state and local resources forced a reexamination of its own role within the larger context of a society profoundly shaken by a growing loss of confidence in its ability to maintain order. What made this task especially difficult, but no less
1 William D. Mitchell, “The Administration of Criminal Justice, An Address Broadcast by Radio Under the Auspices of the American Bar Association, March 6, 1932,” Herbert Hoover Papers, “Cabinet Officers, Justice, Press Releases, Attorney General 1932-1933,” 3-4.
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critical, was a growing economic and social crisis in which the whole spectrum of
crime became widely regarded as yet additional evidence of the nation’s
“demoralization and moral decline.”2 While the solutions proposed by the Hoover
and Roosevelt administrations clearly reflected their deep political and
philosophical differences, the efforts of each sprang from similar assumptions
regarding the value and historical significance of a system of divided
responsibility in the enforcement of law. These assumptions, while
accommodating a wide divergence in the approaches taken to improve the
administration of criminal justice, remained unchanged throughout this process of
reform and change and would serve, well into the latter half of the Twentieth
Century, as an effective restraint upon the expansion of federal criminal
jurisdiction and the activities of an increasingly efficient federal enforcement
bureaucracy.
It is in their different responses to what they similarly regarded as the most
important reason for the nation’s despair over the seemingly uncontrollable
problem of “lawlessness,” the inability of the local authorities to adequately
counter new trends in criminal behavior and organization, that the presidencies of
Hoover and Roosevelt can be distinguished from one another. The more
celebrated of the two, the crime-fighting campaign of the Roosevelt Justice
Department, clearly drew its inspiration from the greater rationale of the New
Deal recovery program. It relied heavily upon the public support it purposely
generated to create the kinds of inter-agency cooperative arrangements that
2 Athan G. Theoharis, Ed., The FBI: A Comprehensive Reference Guide (Phoenix, AZ: Oryx Press, 1999), 266
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could best serve a broader national policy goal, in this instance, the restoration of
the public’s confidence in the policing capabilities of their local officials, while
avoiding a more substantial, more costly, and politically riskier intervention on its
part. At its core, the New Deal’s anticrime program, while absorbing the many
organizational reforms and bureaucratic improvements for which President
Hoover was responsible, was, except in one vital and significant respect, not so
different from that of its predecessor’s, which perceived the federal government’s
role as a “limited but efficient element in the solution”3 to the overall problem of
crime. Where it differed was in its sensitivity to the nation’s continuing despair
over the growing problem and meaning of “lawlessness,” the insight it had, and
upon which it acted, regarding the connection that existed between the economic
and social disruption the nation was experiencing and a growing fear, even
anticipation, of an upsurge in crime. In such circumstances, any
acknowledgement of the nation’s “crime problem” as an urgent and legitimate federal concern could only have been regarded as part of a more general and certainly welcome expression of federal interest in a whole range of problems - widespread unemployment, failed economic and political institutions, social conflict, and personal hardship among them – then afflicting the body politic.4
For Roosevelt and his attorney general, both seasoned politicians, the public’s perception of crime as rampant and menacing amounted to a political crisis that required an essentially political, as opposed to a systemic, solution.
3 James D. Calder, The Origins and Development of Federal Crime Control Policy: Herbert Hoover’s Initiatives (Westport, Connecticut: Praeger, 1993), 49. 4 Joel Rosch, “Crime As An Issue In American Politics,” Edited by Erika Fairchild and Vincent J. Webb, The Politics of Crime and Criminal Justice (Beverly Hills, CA: Sage Publications, 1985), 28.
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In a world transformed by economic depression and dislocation, any
emphasis upon a philosophy of government that insisted upon an especially rigid separation among the different levels of government, consigning the activity of each to those areas in which it was presumably most competent, would have been utterly self-defeating. President Hoover’s response to the collapse of the nation’s financial system and the consequential damage that affected virtually all other sectors of the nation’s economy reflected a determination on his part to utilize the full range of powers to which he as President had access in order to more effectively address this rapidly evolving crisis. But he could not ignore the fact that those very powers were circumscribed by constitutional and federal constraints over which he had no control and to which he was obligated to respect for reasons that invoked, as his own Attorney General would later explain, “the very spirit of our constitutional system, the maintenance of the proper balance between local and national governments and the preservation of
that system of local self-government and responsibility under which we have heretofore prospered.”5 Within the realm of possible courses of action, however, were some that were more closely “attuned to the [nation’s] competing desires for social order” and self-determination, options sufficiently flexible so as to allow all levels of government, as well as non-governmental entities and groups, to participate in effecting a broader solution to the problem.6 For President Hoover,
5 Paul E. Peterson, The Price of Federalism (Washington, D.C.: The Brookings Institution, 1995), 50-51; William D. Mitchell, “Abdication By States Of Powers Under The Constitution, An Address Before The American Bar Association, September 19, 1931,” Herbert Hoover Papers, Cabinet Officers, Department of Justice, Correspondence (June-September, 1931), 7. 6 Ellis W. Hawley, “Neo-Institutional History and the Understanding of Herbert Hoover,” Edited by Lee Nash, Understanding Herbert Hoover (Stanford, CA: Hoover Institution Press, 1987), 65-84, 76.
397 who had no desire to repeat what he believed were the errors of policy or judgment that had been so characteristic of the government’s record of governance during the First World War, the issue presented by increasingly widespread lawlessness was a matter that invited federal contribution and a more “technocratic” approach as opposed to direct intervention. But the
“lawlessness” with which the President believed he was confronted was that which pertained to the kind of criminal behavior that was of legitimate concern to the federal government, specifically, those crimes that violated federal law or were committed on federal property. Certainly, the enforcement of prohibition was a federal responsibility, but only in part, given the practical limitations and the supplementary role to be played by the national government.
The “lawlessness” to which the President often referred, however, differed materially from that which had increasingly become of concern to the news media, local authorities, business interests, and the public. It was generally confined to conduct that violated federal law, matters made subject to federal criminal jurisdiction by specific congressional enactments. Federal jurisdiction did not encompass the kinds of criminal acts, robbery, murder, extortion, gambling, or fraud, which were ordinarily punishable under state law. The duty and power to suppress crime, therefore, whether it was organized or not, lay entirely with the local authorities. The President, as did many who supported temperance, was simply not prepared to concede that “temperance” produced crime, nor was he of the opinion that the so-called “crime wave” was a direct
398 consequence of a failing support for prohibition.7 The causes of crime, he knew, were many, not the least of which was the prevalence of weak and inefficient systems of enforcement and punishment throughout the nation, a situation that unavoidably affected prohibition enforcement, but remained outside the realm of any federal corrective or remedial action. And there was the rub, for without the active participation of the states, the federal government had little hope of ever fully discharging the duties prescribed for it under the Eighteenth Amendment.
In its effort to resolve this dilemma, the Hoover administration was undoubtedly made uncomfortable by those who called for a more active federal role in the suppression of crime and particularly organized crime, which, despite its clear involvement in the manufacture and sale of illicit alcohol, remained active in those other criminal enterprises over which it had long exercised a dominance and which remained an important source of income. Throughout his presidency, Hoover and his advisers strongly resisted any proposals for an expanded federal role, a position that not only represented their views respecting the limited power granted the executive under the constitution, but also reflected their concerns regarding the tendency of the states to shift responsibility for the burdens of enforcement whenever the occasion permitted it. A prime example, of course, involved the Eighteenth Amendment. By 1927, fewer than half the states were making any appropriations for its enforcement, and three of those
7 Charles Bright, The Powers That Punish: Prison and Politics in the Era of the “Big House,” 1920-1955 (Ann Arbor: The University of Michigan Press, 1996), 38; Calder, The Origins and Development of Federal Crime Control Policy, 75.
399
were annually allocating less than one thousand dollars.8 But there were other
instances where the states had partially defaulted on their responsibility to
enforce the law, situations that called for the reactivation of programs intended to
persuade state legislators and enforcement agencies to assume a more
aggressive stance, as in the enforcement of the various state narcotics acts, or to
recognize their primary responsibility in the enforcement of laws, especially
bearing upon auto theft, that were primarily of local concern. By 1932, fully one-
third of all those in prison for auto theft were imprisoned in federal institutions.9
With the onset of the Depression, however, the administration found itself
under increased pressure to accept responsibility for an ever widening range of
criminal acts, a struggle over the direction and substance of federal enforcement
policy that soon reached Congress. In 1930, members of the House
Subcommittee on Interstate and Foreign Commerce debated the merits of a
proposal to extend federal regulation over the interstate shipment of firearms.
Despite the pleas of its sponsors who argued that the fundamental obligation of
any nation involved the maintenance of public order, the bills were rejected by a
majority of the subcommittee’s membership who expressed their equally firm
belief that the “preservation of public order [was] a matter for the exercise of the
police power” and that the proposals under consideration were no more than a
blatant effort “to unload on the Federal Government the duty of the State to
8 Michael R. Belknap, “Uncooperative Federalism: The Failure of the Bureau of Investigation’s Intergovernmental Attack on Radicalism,” Publius 12, no. 2 (Spring, 1982), 25-47, 44. 9 Max Lowenthal, The Federal Bureau of Investigation (Westport, Conn.: Greenwood Press, 1971 [1950]), 402.
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preserve the public peace.”10 Such outcomes, given the closeness of the vote
counts made in connection with a growing number of law and order concerns
raised in both houses of Congress, was of cold comfort to the President and his
attorney general. The sources of the pressures they endured, however, were not
all from outside of the administration. The failure of the states’ enforcement
apparatus to adequately cope with the power and public image of the leaders of
organized crime inevitably attracted the attention of federal enforcement officials dispersed throughout the country, contributing to a new trend in federal investigation and prosecution that was encouraged as much by certain new developments in the judicial interpretation of federal law as by a heightened sense of duty and impatience among the increasingly professionalized ranks of federal enforcement officials.
In the early 1930s, the nation’s fears regarding the prevalence of crime and the ravages of a growing economic crisis became more closely joined. The
Hoover administration’s inability to demonstrate some form of decisive leadership in the nation’s response to either of these developments became a significant political liability for the President, one that did not escape Roosevelt’s, the
Democratic frontrunner, notice. Following the presidential election of 1932,
Roosevelt, now occupying Hoover’s office, felt strongly compelled, therefore, to offer some form of assurance regarding the government’s interest in mounting, as part of a broader effort to address the nation’s social and economic ills, a
10 United States. Congress. House of Representatives. Subcommittee of the Committee On Interstate and Foreign Commerce. Several Bills Pending Before the Committee To Regulate the Interstate Shipment of Firearms, April 11, 1930. Seventy-first Congress, second session. (Washington, D.C.: United States. U.S. Government Printing Office, 1930).
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campaign against crime and criminals, an effort the promised intensity and
breadth of which would clearly justified the use of such war metaphors as a “war
on crime” and would provide local police officials, upon whom the success of this
effort would rest, with an enhanced sense of the social importance of their
profession and with increased public confidence in their capabilities.11 It is this
perspective that enabled the Roosevelt administration to more deftly handle the
nation’s crime control issue and encouraged the new President’s attorney
general to transform a heightened social awareness of crime into a wave of
virtually uncritical support for the federal government’s unprecedented effort to mobilize local and state resources for its “war on crime.”12
A System in Jeopardy
Despite their differences, neither Hoover, nor Roosevelt ever questioned
the notion that the primary responsibility for the enforcement of criminal law
rested with the states and their political subdivisions. Where they divided,
however, was over the issue of how the federal government could best respond
to the nation’s growing crisis in policing and in the administration of justice.
President Hoover firmly believed that the federal government was limited not only
11Tony G. Poveda, Lawlessness and Reform: The FBI In Transition (Pacific Grove, CA: Brooks/Cole Publishing Co., 1990 [1989]), 18, 19; William J. Helmer, The Gun That Made the Twenties Roar (London: The MacMillan Company, Collier-MacMillan Ltd., 1969), 103; Mark Fishman, “Crime Waves As Ideology,” Social Problems 25, no. 5 (June 1978), 542. 12 The United States had always been fairly crime-ridden and violent, but it is important to note that, even before the onset of the New Deal, most crime indicators of the day revealed the beginning of a decline of the numbers of serious crimes committed, among them murder. President Hoover’s specially appointed Research Committee On Social Trends found no reliable data to support the public’s perception of a rising crime wave. Until the early 1960s, in fact, the crime rate would remain well below those levels reached in the 1920s. Charles E. Silberman, Criminal Violence, Criminal Justice (New York: Vintage Books, 1980 (1978]), 39-40; Milton S. Mayer, “Myth of the ‘G-Men’,” Forum (September, 1935): 144-146, 146; Theodore Caplow, Louis Hicks, and Ben J. Wattenberg, The First Measured Century: An Illustrated Guide to Trends In America, 1900-2000 (Washington, D.C.: The American Enterprise Institute Press, 2001), 214- 215.
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by the legal constraints under which it functioned, but also by its clearly “limited
potential to affect the incidence of crime.” What lay at the heart of the problem,
he was convinced, was “respect for law and obedience to law,” factors so
ingrained in everyday life and so rooted in the exercise of individual “conscience”
that their solution remained beyond the reach of federal intervention and could
only be effectively addressed through local initiative.13 However, “respect for law and obedience to law does not,” he conceded, “distinguish between federal and state laws – it is a common conscience,” and, as such, imposed upon the national government a duty to provide “leadership” in the “establishment of standards of law enforcement” that could be used to improve the performance of
those local officials whose responsibility it primarily was.14 For the government,
then, the challenge before it had to be met on two levels, the first requiring that it
“awaken” the public to “the fundamental consciousness of democracy, which is
that the laws are theirs and that every responsible member of a democracy has
the primary duty to obey the law,” and the second requiring a reorganization of
the nation’s law enforcement “machinery – federal, state, and local” – in order to
transform a system of justice that “unduly favors the criminal” into one
demonstrating far greater and more appropriate concern for the “protection of
society.” 15
Hoover’s reluctance to resort to direct government intervention in matters
of local concern did not, therefore, deter him from addressing what he regarded
13 Calder, The Origins and Development of Federal Crime Control Policy, 33, 213; Herbert Hoover, “Respect for Law,” Edited by Julia Emily Johnsen, Selected Articles On Law Enforcement (New York: The H. W. Wilson Company, 1930), 269. 14 Calder, The Origins and Development of Federal Crime Control Policy, 33. 15 Johnsen, Selected Articles On Law Enforcement, 271-272.
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as the shamefully neglected state of federal law enforcement and the
administration of federal justice. He had assumed office at a time when federal
policing, now closely associated with prohibition enforcement, was held in
particularly low esteem. Federal prison facilities were inadequate to process and
confine the growing numbers of offenders committed to their care by a judiciary
increasingly overburdened by a growing list of newly enacted laws and
regulations.16 From a purely functional standpoint, the need for corrective action was inescapable and the purpose of reform equally clear: “our law enforcement machinery is suffering,” the President noted, “from many infirmities arising out of its technicalities, its circumlocutions, its involved procedures, and too often, I regret, from inefficient and delinquent officials.”17 To the task of reforming the federal system, President Hoover brought a renewed energy, appointing capable administrators, promoting the use of modern administrative structures and
managerial techniques, and encouraging greater inter-agency cooperation. From
the beginning, however, the President’s program was especially careful to avoid
even the appearance of infringing upon the police powers of the states and was
designed to proceed along lines that law within the confines of recognized federal
enforcement powers: “First, to investigate our existing agencies of enforcement,
and second, to reorganize our system of enforcement in such a manner as to
eliminate its weaknesses.”18 Though ultimately confined to those federal
agencies and courts that were the intended beneficiaries of the President’s
reforms and procedural innovations, the effect of the President’s reform program
16 Calder, The Origins and Development of Federal Crime Control Policy, 2. 17 Hoover, “Respect for Law,” 267. 18 Ibid., 270.
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did much to provide new competencies to federal policing, prosecution, and
corrections, resulting in, among other things, the establishment of a national commission to study a wide array of issues concerning crime and crime
suppression, new prison construction, the expansion of the jurisdictional authority of federal magistrates, and a revamping of federal judicial procedure.19 But none
of these measures, designed primarily to improve the efficiency and integrity of
federal criminal justice, were sufficient in and of themselves to affect the state of
local policing or, more importantly, to assuage the fears of an increasingly
anxious public dependant upon it for their protection and safety.
Struggling for “Balance”
The election of Herbert Hoover in 1928 resulted in a narrowing of the
scope of federal enforcement that reflected many of the concerns expressed in
connection with American policing generally. The previous year, Congress had
found it necessary to enact legislation intended, in part, to counteract widespread
dissatisfaction with the methods employed by federal prohibition agents to
enforce the Volstead Act. In the absence of sufficient funds and manpower and
lacking the training, supervision, and better coordination that could have
introduced a measure of consistency and balance into their effort, federal agents increasingly resorted to tactics that were reminiscent of the worst abuses of the red scare era and which clearly did not comport with more familiar images of federal enforcement practices.20 To remedy this situation, Congress required all
federal prohibition agents to meet civil service requirements and standards in the
19 Calder, The Origins and Development of Federal Crime Control Policy, 214-218. 20 Charles Merz, The Dry Decade (3rd Ed.) (Seattle: University of Washington Press, 1970), 132.
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mistaken belief that improving the quality of the enforcer would have an equally
salubrious effect upon the process of enforcement and its outcome. By focusing, however, upon the issues that were raised in connection with the many abuses, rising violence, and corruption that had come to characterize federal prohibition
enforcement, Congress neglected to address the fundamental weaknesses in the
government’s enforcement mechanism and strategy, an oversight that
contributed to the growing impression that national prohibition was unenforceable
and a drain upon the country’s resources that could not be sustained indefinitely.
Such was the challenge that confronted the newly elected president, and he did not hesitate to respond to it with an aggressive program of reform that was designed to bring, through organizational realignment, a higher degree of coherence to federal enforcement policies generally and, by means of a thorough and far-ranging examination of the problem itself, a sense of direction to federal prohibition enforcement and, for that matter, to the entire system of criminal
justice administration.
Herbert Hoover was not without some personal misgivings regarding the enforceability of national prohibition or the use of the Constitution as a vehicle for
“advancing temperance.” He had not actually intended to make prohibition as important an issue as it became in the 1928 presidential campaign. However, neither he, nor the Republican leadership could dissuade the prohibitionists within their own party, and especially Senator William Borah of Idaho, the leading prohibition advocate in the Senate, from inserting a statement in the Republican party platform regarding the party’s continuing commitment to the “vigorous
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enforcement” of the Eighteenth Amendment, a position that attracted support
from members of both national parties, especially in the southern states, which, until then, had been an impenetrable Democratic stronghold. Hoover would later complain that he had been forced to confront the issue by his Democratic opponent, Governor Al Smith of New York, who had been responsible for the repeal of that state’s prohibition statute in 1923 and who had openly “proclaimed the law unenforceable,” warning that it would lead to “crime and the breakdown of constitutional principles.”21 As a political issue, however, prohibition, which
“masked” many of the cultural, moral, and religious tensions that divided
American society and thus made the formation of more broadly-based political coalitions especially difficult, offered one of the few opportunities the candidates, who were largely in agreement over foreign and economic policy, would have to appeal to the electorate at large.22 In the debate that followed, the full weight of defending prohibition fell upon Hoover who had once described it as a worthy social “experiment, noble in motive” and deserving of the public’s support, if only because it remained the “law of the land.” Hoover’s success at the polls convinced him that a majority of the nation’s voters were not prepared to abandon prohibition until they themselves became convinced of either the futility
21 Herbert Hoover, The Memoirs of Herbert Hoover: The Cabinet and the Presidency, 1920-1933 (New York: The Macmillan Company, 1952), 200, 201; Roy V. Peel and Thomas C. Donnelly, The 1928 Campaign, An Analysis (New York: Richard R. Smith, Inc, 1931), 58-59; LeRoy Ashby, The Spearless Leader: Senator Borah and the Progressive Movement in the 1920’s (Urbana: University of Illinois Press, 1972), 257-258; Gerald Gunther, Learned Hand: The Man and the Judge (New York: Alfred A. Knopf, Publishers, 1994), 348-349; David E. Kyvig, Repealing National Prohibition (Chicago: The University of Chicago Press, 1979), 104. 22 David J. Goldberg, Discontented America: The United States In the 1920s (Baltimore: The Johns Hopkins University Press, 1999), 177-178; Peel and Donnelly, The 1928 Campaign, 63; Robert K. Murray, The 103rd Ballot: Democrats and the Disaster In Madison Square Garden (New York: Harper & Row, Publishers, 1976), 22.
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of its enforcement or its “ill-effects.”23 But his victory was tempered by the
realization that the fortunes of the Republican party were now very closely tied to the fate of prohibition and by increasingly pressing questions concerning the
competencies of the federal agencies involved and the viability of an
enforcement scheme, that of concurrent powers, that seemed to lack cohesion in
its application and clarity in its objectives.
The new President quickly came to the conclusion that “the first hard
practical fault was in the concept of enforcement” and that a program of reform
was urgently needed.24 How the former was to be resolved, given the federal
government’s limited resources and jurisdictional constraints, was not made
immediately clear. Despite the many organizational challenges the federal
government had yet to meet, the problem with prohibition enforcement extended
well beyond the government’s comparatively smaller role and concerned the
extent to which the states were prepared to meet the original expectations of the
parties who were chiefly responsible for the adoption of the Eighteenth
Amendment. Federal officials had originally inferred from the adoption of the
Prohibition Amendment that responsibility for its enforcement – and the allocation
of the funds and manpower that would be necessary to apprehend, incarcerate,
try, and imprison offenders – would be borne primarily by the states and local
communities. The federal government, on the other hand, would confine its
efforts, as it had always done in the past, to policing interstate traffic and the
import/export trade. In the years following the enactment of the Volstead Act,
23 Kyvig, Repealing National Prohibition, 104-105; John D. Hicks, Republican Ascendancy, 1921- 1933 (New York: Harper & Brothers, 1960), 260-261. 24 Hoover, Memoirs, 276.
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however, a number of states reversed course and repudiated the policy that lay at the heart of the Amendment, either repealing their prohibition statutes altogether or quietly reducing the funds allotted for their enforcement, an act tantamount to repeal.25 President Hoover regarded such acts on the part of
some states as inherently dangerous and unsupportable as a matter of policy or
law. No state, he argued, could afford to ignore the basic requirement of law,
obedience, even where its citizens found such compliance distasteful, without
placing the nation’s principles of self-government at risk and its social order in
jeopardy.26 Such practices amounted to a form of nullification, which simply could not, given its potentially harmful implications for the nation as a whole, be
countenanced for long.27
There were other, equally compelling reasons to be alarmed about this
state of affairs. State prohibition laws varied greatly from one another, as did
their enforcement policies and practices. Such wide variances affected not only
the quality, but also the consistency and the uniformity with which prohibition was
enforced, a situation, the President was convinced, that gave rise to questions
concerning its fundamental fairness, encouraged disrespect for its application,
and tolerated widespread disobedience virtually without consequence. The
result was an uneven patchwork of highly dissimilar enforcement programs
25 William F. Swindler, Court and Constitution In the Twentieth Century (New York: Bobbs-Merrill Company, 1969), 268. 26 “Self-government is predicated upon the fact that every responsible citizen will take his part in the creation of law, the obedience to law, and the selection of officials and methods for its enforcement. . . . . Every citizen has a personal duty in it – the duty to order his own actions, to so weigh the effect of his example, that his conduct shall be a positive force in his community with respect to the law.” Public Papers of the Presidents of the United States, Herbert Hoover, Containing the Public Messages, Speeches, and Statements of the President, March 4 to December 31, 1929 (Washington, D.C.: Government Printing Office, 1974), 105. 27 Hoover, Memoirs, 201.
409 instead of the relatively seamless pattern of enforcement originally envisioned by the crafters of the Eighteenth Amendment. Such “holes” in the fabric of the law could not, of course, be adequately covered by federal agencies whose limited numbers of field personnel were already stretched thin and struggling to cope with a form of policing for which they were unsuited by both tradition and orientation. Making this problem even more challenging for them was the close connection that existed between local politics and policing, a situation as unsettling for the federal agencies involved as it was unavoidable. The unpredictable and frequent changes that were so characteristic of local politics and, therefore, of the decision-making and considerations influencing the focus and priorities of local policing made joint activities and coordination between federal and local officials difficult and often unproductive.
As a candidate, Hoover recognized that he had to address the more egregious sources of popular discontent with the government’s prohibition enforcement efforts, and he promised, therefore, to devote attention to the task of reorganizing the federal criminal justice system and to utilize the most informed sources available to effect much needed reform. The approach Hoover proposed to take, however, while raising questions regarding the relative merits of a reform program designed to improve the implementation of a seriously flawed policy,28 were motivated more by his concern for the unsettling effects of federal intervention than they were by any political consideration. What is important to recognize with respect to Herbert Hoover’s perception of this crisis in law enforcement are the assumptions that shaped his understanding of the role
28 “The New Hoover Drive On Crime,” The Literary Digest (May 10, 1930), 10.
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of the national government in a federalist system, the larger implications of the
problem confronting law enforcement, and how they combined to narrow the
options that were available to him as president. Despite the skepticism he faced
over the prospect of achieving any success in prohibition enforcement, Hoover
never conceded that the state of “lawlessness” to which he so often referred in
his speeches was indicative of the utter failure of prohibition, certainly not as a
social policy, and not yet, he believed, as an enforceable law.29 From the
beginning, he saw the federal government as possessed of only limited powers,
which were defined in the Constitution as those that were reasonably “necessary
and proper” for their execution.30 What concerned him was a growing trend on
the part of the national government to absorb responsibilities under the authority
granted by either the welfare or interstate commerce clauses that were
increasingly unrelated to the powers actually described in the Constitution, a
tendency that was threatening to upset an historical balance of power between
the federal and state governments and to weaken a system of local self-
government and a tradition of local responsibility that was, for Hoover, the source
of the nation’s great strength. No better example of the dangers inherent in the
expansion of the federal government’s powers could be found than in the
enforcement of prohibition, a responsibility that had been disavowed by several
of the states and increasingly shifted onto the shoulders of the federal
government.31
29 Edgar E. Robinson and Vaughn D. Bornet, Herbert Hoover: President of the United States (Stanford, CA: Hoover Institution Press, 1975), 83. 30 Article I, Section 8. 31 Hoover, Memoirs, 276.
411
From the President’s perspective, there could “be no satisfactory decision on the policy of Federal Prohibition until there [had] been a test of the law under a system of enforcement which shall be honest and efficient . . . .”32 The “system” to which Hoover referred was one largely dominated by local and state powers that were principally responsible for providing for criminal law and its enforcement. It was a system, he believed, whose perceived weaknesses in execution extended well beyond the parameters of prohibition enforcement into areas in which federal intervention could neither be accommodated, nor constitutionally invited without posing a threat to much larger national interests and governing principles. The states’ failure to devote adequate resources to prohibition enforcement was, Hoover believed, reflective of their failings in policing generally, a claim first made when the President noted that prohibition played “but a small part in the general reign of lawlessness.” The President’s insistence that prohibition played but a small part in the country’s growing lawlessness,33 though controversial, was, nevertheless, consistent with his belief that the real issue concerned deterrence: whether federal and state enforcement mechanisms were sufficiently adequate to ensure the kind of swift and effective justice that could instill “fear into the minds of those who have not the intelligence and moral instinct to obey the law” and would encourage the rest of the population to be more conscious of their duties and responsibilities as law-
32 Hoover, “Respect for Law,” 268. 33 In his inaugural address, President Hoover, while acknowledging a rise in the incidence of crime, expressed his belief that prohibition was only minorly responsible for this increase: “The problem is much wider than that. Many influences had increasingly complicated and weakened our law enforcement organization long before the adoption of the 18th Amendment.” Public Papers, Herbert Hoover, 2.
412
abiding citizens.34 The states’ practice of deferring to the federal government in
the enforcement of prohibition, whether because of the costs they incurred or
because of the political considerations involved, had long been a source of
resentment and ongoing concern among federal officials responsible for
overseeing the government’s law enforcement responsibilities. As far back as
1922, when called before the Senate sub-committee investigating the activities of
Attorney General Daugherty, Assistant Attorney General John W. H. Crim, head
of the Justice Department’s Criminal Division, had complained bitterly that there
had been for many years “a powerful current of political opinion flowing through
our society, devitalizing local government . . . and saddling police responsibility
on the federal government that is essentially the function of local government.”35
It would remain an important theme in federal-state crime suppression efforts and remain so during the New Deal. In 1934, Hoover’s former Secretary of State
(who would become, six years later, Roosevelt’s Secretary of War) Henry
Stimson reminded those attending a national conference on crime that had been convened by then Attorney General Homer Cummings that “the great bulk of crime is local and the responsibility for its apprehension and punishment should remain imposed upon the localities where it occurs. To throw this burden upon the Federal government will not only atrophy and weaken the sense of responsibility of the local officials but it may easily overwhelm and paralyze the work of the Federal judicial system itself.”36 In this context, President Hoover’s
34 “The New Hoover’s’ War-Cry Against Crime,” The Literary Digest 51, no.5 (May 4, 1929), 6. 35 Lowenthal, The Federal Bureau of Investigation, 416. 36 Proceedings of the Attorney General’s Conference On Crime, Held December 10-13, 1934 (Washington, D.C.: Government Printing Office, 1935), 14-15.
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position respecting the “problem of lawlessness” becomes more readily
understandable as a reaction to what he perceived as the relatively weak state of local law enforcement, a situation in which defiance of the law and of the laws respecting prohibition, in particular, were attributable more to ineffectual local law enforcement and the inability of local officials to command respect for the law than to the law itself. “Intuitively and practically, Hoover was fully aware that degradation of citizen attitudes toward police and other justice agencies would ultimately impair overall obedience to law. Purely federal initiative could not change this situation.”37
The solution to this problem, therefore, required the use of the most basic
tools of progressive reform, institutional change and public education. With
respect to the former, the President proposed to bring a series of organizational
and operational reforms that would eliminate the most obvious sources of the
public’s ill-feeling toward federal enforcement activity. Questions of corruption
aside, the real issue, the President knew, concerned the methods that were
being employed by federal agents to enforce an increasingly unpopular law,
methods that were often challenged as being inappropriate or abusive: “the
failure of highly advertised drives . . . to achieve any appreciable results, the
inability to apprehend or punish the powerful individuals behind the large
bootlegging operations,” the confiscation of private property, whether done
temporarily or permanently, the prosecution of persons for relatively minor
offenses, and the promises made and the light sentences imposed in exchange
for pleas on so-called “bargain days,” were all practices that were “not likely to
37 Calder, The Origins and Development of Federal Crime Control Policy, 107.
414
inspire confidence.”38 As for the latter, Hoover proposed to commission a
comprehensive study of all pertinent issues relative to crime and crime control in
order to illuminate the complexity of the crime problem and to provide a clearer
understanding of the steps that would have to be taken to resolve it. The
President was clearly hopeful that an inquiry of this nature, comprehensive in
scope and sophisticated in its research, would succeed in identifying the
“institutional problems of [the] police, courts, and corrections,”39 but, more
importantly, he believed, perhaps as a matter of faith, that the outcome would
serve to stimulate real change and improvement among the local agencies upon
whom the responsibility of crime suppression fell.
a. A Model of Efficiency
“While the authority of the Federal Government extends to but part of our vast system of national, State, and local justice, yet the standards which the Federal Government establishes have the most profound influence upon the whole structure.”40
Until Herbert Hoover became the nation’s chief executive, federal policing,
aside from that devoted to the enforcement of the Eighteenth Amendment,
received very little attention. As a patchwork of small organizations of varying
status within their larger bureaucratic organizations whose functions and
purposes were derived almost entirely from the limited authority delegated and
special responsibilities assigned to the Departments of which they were a part,
they lacked any set of standards or investigative procedures in common and
possessed little incentive to cooperate with one another in those few areas where
38 Louis M. Hacker, “Rise and Fall of Prohibition,” Edited by Julia Emily Johnsen, Selected Articles On The Problem Of Liquor Control (New York: The H. W. Wilson Company, 1934), 94. 39 Calder, The Origins and Development of Federal Crime Control Policy, 75. 40 Public Papers, Herbert Hoover, 2.
415
they could have benefited from some degree of coordination. It was this state of affairs that the President chose to address during his first annual message to
Congress when he called for measures that would both improve the operational
efficiency of virtually all aspects of the federal criminal justice system and provide
for the redistribution and consolidation of a number of enforcement and
correctional functions within the Department of Justice.41 From his position in
the cabinets of his two predecessors, President Hoover had closely witnessed
the travails and frustrations of federal policing, an experience that had hardened
his resolve to more carefully define the nature and extent of the federal
government’s law enforcement activity. The re-organizational process he
envisioned was heavily focused upon the challenges posed by the
unprecedented nature of the specific enforcement functions with which the
government had become involved and by the unusually large size and far-
ranging deployment of the federal forces that had been assembled to undertake
these new responsibilities. The increased scope of federal policing and the new conditions under which it functioned made supervision difficult and frequently resulted in conduct – abusive interrogation techniques, wiretapping, questionable searches and seizures, frequent reliance upon force or violence to achieve results, and the failure to observe the requirements of legal procedure – that sorely tested the public’s patience while strengthening their apprehensions
respecting federal power. The President strongly believed that the only way to forcefully counteract the criticism that had resulted from such demonstrations of ineptitude and ill-discipline was to instill “new levels of control, efficiency, and
41 Ibid., 2-3.
416 professionalism” among the government’s enforcement agencies and to “impose new performance expectations” upon their personnel.42 “It is the purpose of the
Federal administration,” he would declare in a speech before the members of the
Associated Press in April, 1929, “systematically to strengthen its law enforcement agencies week by week, month by month, year by year, not by dramatic displays and violent attacks in order to make headlines, . . ., but by steady pressure, steady weeding out of all incapable and negligent officials no matter what their status; by encouragement, promotion, and recognition for those who do their duty; and by the most rigid scrutiny of the records and attitudes of all persons suggested for appointment to official posts in our entire law enforcement machinery.”43
As James Calder noted, the agencies that were of the greatest concern to the President were those which were more clearly involved in enforcement functions that required some level of engagement with local police forces
(Bureau of Prohibition, the Narcotics Bureau, and the Border Patrol). The modernization of these agencies – the introduction of “well-organized, consistently firm, and legally endorsed police methods” – was considered a priority because they could be expected to produce the kinds of results that would pressure local and state authorities into improving their systems of enforcement and would go far to restore public confidence in the nation’s laws and legal system.44 The agency of greatest concern to the President was the
Bureau of Prohibition, which, despite efforts to improve the quality and skills of its
42 Calder, The Origins and Development of Federal Crime Control Policy, 107-108, 115. 43 Public Papers, Herbert Hoover, 103. 44 Calder, The Origins and Development of Federal Crime Control Policy, 106, 107.
417
field force, continued to suffer from maladministration and understaffing.45 There is evidence to suggest, given the complexity of the Bureau’s administrative problems and the controversy surrounding its enforcement activity, that the
President had considered deferring any remedial action until after he had received the recommendations of a national commission charged with assessing the Bureau’s weaknesses.46 But the press of time, along with the Bureau’s
escalating management crisis, demanded immediate attention and resulted in the
Bureau’s transfer from the Treasury to the Justice Department. The re-
designation of the Bureau’s was originally touted as a major step toward the
improvement of inter-agency coordination,47 but, in actuality, it placed the Bureau
at some distance administratively from those agencies within the Treasury
Department that shared the Bureau’s prohibition enforcement responsibility and
failed to clarify the operational and jurisdictional responsibilities of each.48 It is more likely that what prompted the transfer was the hope that by placing it under the scrutiny of the Justice Department, the Bureau would not only benefit from improved relations with the United States Attorneys in each of the federal judicial
45 In 1928, all employees of the Bureau were subjected to the standard written examination for civil service employees to determine whether they would be retained by the Bureau. Three- fourths of those taking the exam failed, a situation that forced the Civil Service Commission to revise the exam and to offer it on a second occasion. Laurence F. Schmeckbier, The Bureau of Prohibition: Its History, Activities and Organization (Washington, D.C.: The Brookings Institution, 1929), 57. 46 Herbert Hoover Papers, Prohibition, Memoranda, May 31, 1929. 47 Testimony of Attorney General William D. Mitchell, United States. Congress. Senate. Committee on the Judiciary. Investigation of Prohibition Enforcement. Hearing[s] before the Committee on the Judiciary, United States Senate, Seventy-first Congress, second session, on Senate Resolution 211, a resolution authorizing the Committee on the Judiciary to investigate the activities of the Bureau of Prohibition and all matters in anywise pertaining to the enforcement of the prohibition laws of the United States. Washington, U.S. Government Printing Office, 1930.; Herbert Hoover Papers, Cabinet Officers, Department of Justice, Attorney General Press Releases, 1929-1930, 3. 48 Schmeckbier, The Bureau of Prohibition, 24-26.
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districts, but could be more closely modeled after the Department’s Bureau of
Investigation whose professional values, hierarchical constraints, and rigid
command structure were increasingly being held up as representative of the
highest standards in bureaucratic efficiency.49
President Hoover’s appointment of William D. Mitchell, the former solicitor
general under Coolidge,50 as his attorney general signaled the beginning of a
new era in prohibition enforcement. For years, since the inception of national
prohibition, the Department had been locked in a struggle with the United States
Attorneys over the administration of the Volstead Act. The absence of any clear
authority over the Department’s prosecutorial staff in the field and the latitude
given them in interpreting and applying both law and policy within their federal judicial districts was a constant source of tension between the Department and those managing its affairs outside of Washington. During the presidency of
Calvin Coolidge, the Department, under the general direction of William J.
Donovan, First Assistant to the Attorney General, and the direct supervision of
Mabel Walker Willebrandt, an assistant attorney general who bore responsibility for prohibition enforcement, attempted to introduce methods for planning and evaluation, greater uniformity in decision-making, and a far more aggressive approach to the prosecution of prohibition cases. Their efforts, however, met with a not surprising amount of resistance, and Willebrandt’s objections to the
49 See William W. Keller, The Liberals and J. Edgar Hoover: The Rise and Fall of a Domestic Intelligence State (Princeton, NJ: Princeton University Press, 1989), 24-26. 50 William DeWitt Mitchell, a Spanish-American War and World War I veteran, had studied electrical engineering before turning to law where he became, after brief service as a regional counsel for the U.S. Railroad Commission, one of soon-to-be-appointed Supreme Court Justice Pierce Butler’s law partners in Minnesota. A Democrat with no interest in politics or political ambitions, he was appointed solicitor general by President Coolidge and would later serve as chief counsel for the Congressional committee investigating the Pearl Harbor disaster.
419
policy and legal judgments made by a number of the United States Attorneys,
along with her efforts to circumvent the political influence of others, alienated
many.51 Though Donovan, a war hero and a former United States Attorney for
the western district of New York, had come highly recommended, President
Hoover was troubled by doubts concerning the strength of Donovan’s personal
commitment to prohibition, his relatively lackluster record as the head of the
Department’s anti-trust division, and his involvement with the prosecution of
Senator Burton K. Wheeler for alleged influence peddling.52 In the end, the
President chose Mitchell over Donovan because he was convinced that the
former more closely reflected his own political and philosophical views and
would, in his management of the Department, generate far less controversy and
negative publicity for the government’s prohibition enforcement effort. This last was a matter of extraordinary concern for Hoover. The President was determined to alter the course of federal prohibition enforcement, and, by doing so, reaffirm the” jurisdictional limitations of federal police action” while simultaneously lessening the government’s reliance “on the contributions of the local police” and the states. Henceforth, the President resolved, federal enforcement resources would be directed against the major violators of the
51 Anthony Cave Brown, The Last Hero: Wild Bill Donovan (New York: Times Books, 1982), 106- 107; Dorothy M. Brown, Mabel Walker Willebrandt: A Study of Power, Loyalty and Law (Knoxville: The University of Tennessee Press, 1984), 74-75; Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, NY: Viking Press, 1956), 158-159; Stephen Fox, Blood and Power: Organized Crime In Twentieth-Century America (New York: William Morrow and Company, Inc., 1989), 49. 52 Brown, The Last Hero, 104, 107; David Burner, Herbert Hoover: A Public Life (New York: Alfred A. Knopf, 1979), 209; Martin L. Fausold, The Presidency of Herbert Hoover (Lawrence: University Press of Kansas, 1985), 35.
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Volstead Act and those who’s political influence and criminal reputations had
brought them to the public eye.53
b. A “Searching Investigation”
“With a view to enlisting public understanding, public support, accurate determination of the facts, and constructive conclusions, I have proposed to establish a national commission to study and report upon the whole of our problems involved in criminal-law enforcement.”54
The idea of establishing a commission to survey the whole of the nation’s
system for the administration of justice, first raised by Hoover during the 1928
election, was re-introduced to the public as one of several proposals relating to
crime and prohibition enforcement that were included in the President’s inaugural
address. By then, the two issues had become inextricably linked in the public’s
mind. For a growing number of citizens, prohibition was no longer working, an
impression that left those who supported the Eighteenth Amendment increasingly
hard pressed, though still determined, to deny any causal connection between its enforcement and the increased lawlessness and disrespect for authority that so filled them with concern.55 Whatever personal reservations the President may have held regarding prohibition, which he had come to regard as a “fixture in
American life,” Hoover strongly believed that the Eighteenth Amendment had made his responsibility clear and that its enforcement was a Constitutional duty he was neither free to ignore, nor able to fully discharge with anything less than
53 Charles Merz, The Dry Decade (Seattle: University of Washington Press, 1970 [1930]), 247. 54 Public Papers, Herbert Hoover, 104. 55 John J. Rumbarger, Profits, Power, and Prohibition: Alcohol Reform and the Industrializing of America, 1800-1930 (Albany: State University of New York press, 1989), 189; Bright, The Powers That Punish, 38.
421
his customary vigor.56 Fearful that the present situation, if left uncorrected,
would encourage greater disrespect for the nation’s laws, not merely prohibition, the President chose to resolve the question of prohibition’s enforceability by a means he believed would avoid the partisanship that was certain to undermine the credibility and conclusiveness of the only other alternative courses available to him, the enactment of new legislation or the pursuit of a purely political solution. What was needed, he had become convinced, was a more “rational and scientific” approach, an “organized searching” through “fact and causes” that could “alone” determine the “wise[st] method of correcting” those abuses and failures in enforcement that were responsible for alienating so many of the
nation’s citizens: “It must not come to be in our Republic that it can be defeated
by the indifference of the citizens, by exploitation of the delays and entanglements of the law, or by combinations of criminals. Justice must not fail because the agencies of enforcement are either delinquent or inefficiently organized. To consider these evils, to find their remedy, is the most sore necessity of our times.”57
The National Commission on Law Observance and Enforcement, soon to
be known as the Wickersham Commission, was given a fairly “broad mandate to
scrutinize” a range of issues concerning the nation’s law enforcement machinery
and activity. The fact that it was established in response to a national crisis
respecting prohibition enforcement, however, made the Commission’s treatment
56 Burner, Herbert Hoover, 219 57 Hoover, The Memoirs of Herbert Hoover, 201; Public Papers, Herbert Hoover, 3.
422
of that subject a “de facto priority.”58 The care, therefore, with which the
President selected his commissioners, while reflecting his determination that the
Commission’s investigation be exhaustive in scope and highly productive as a source of “usable knowledge,” also suggests the presence of other considerations that may have influenced the President’s decision to utilize a commission to address one of the most socially divisive issues confronting his administration. Organized under the chairmanship of George W. Wickersham, the former attorney general of the United States, and including some of the most distinguished figures in their fields,59 the Commission, purportedly untainted by
the debate over prohibition and serving solely as a fact-finding body of “experts,”
was expected, therefore, to produce a set of recommendations so compellingly
authoritative as to compel the states into taking more decisive action in the performance of their enforcement duties, while reaffirming the legitimacy of the federal government’s claim of a more limited role as a law enforcing agency.60
Despite the skepticism voiced by some who reacted critically to the
President’s announcement concerning the appointment of a commission and who described it as a weak palliative to the growing problem of crime, Hoover’s preference for a more studied approach was generally well received by both sides of the prohibition debate. The public’s receptiveness most likely reflected
58 Rumbarger, Profits, Power, and Prohibition, 195. 59 Among those accepting appointments to the Commission were Roscoe Pound, Dean of the Harvard Law School, Ada Comstock, President of Radcliffe College and an eminent sociologist, Newton D. Baker, Woodrow Wilson’s Secretary of War, and Frank J. Loesch, Vice-President of the Chicago Crime Commission. 60 Barry D. Karl, “Presidential Planning and Social Science Research: Mr. Hoover’s Experts,” Perspectives In American History 3 (1969): 345-409, 355; “A Commission With A Herculean Task,” The Literary Digest (June 1, 1929), 6; Rumbarger, Profits, Power, and Prohibition, 196; Frank Popper, The President’s Commissions (New York: The Twentieth Century Fund, 1970), 11, 13.
423
their raised expectations regarding the probable policy consequences of the
Commission’s final recommendations, a level of anticipation that unfortunately
obscured the Commission’s originally stated and more expansive purpose,61 which, while clearly including prohibition enforcement within the parameters of its review, just as clearly noted that it would not be deciding whether the Eighteenth
Amendment should be repealed. Rather, its purpose would be to determine, in the words of Bishop James Cannon, Jr., a prominent leader of the “drys,” “what educative and enforcement methods, including statutory legislation, will secure the best results” in the nation’s efforts to promote and enforce national prohibition.62 As it struggled to complete its assignment, however, laboring unremittingly under the most trying of political conditions and suffering from
shortages in funds and manpower, the Commission finally succumbed to the
pressures surrounding its work and submitted a preliminary report for the
President’s consideration. The Commission identified the concurrent powers
provision of the Eighteenth Amendment, which permitted each of the states to
exercise their prerogatives respecting enforcement, as the source of the problem
confronting those responsible for enforcing national prohibition. Though they did
not define the federal government’s responsibilities in any great detail, the
Commissioners emphasized the government’s limited role in enforcement and
listed several policy and administrative deficiencies, among them: that the
“magnitude of the task” had neither been fully appreciated, nor adequately
addressed; that in the absence of a “federal police power,” the government had
61 Robinson and Bornet, Herbert Hoover: President of the United States, 87. 62 “A Commission With A Herculean Task,” The Literary Digest (June 1, 1929), 7.
424
been forced to resort to others of its powers to enforce prohibition and to do so
with enforcement machinery “ill adapted” to the task; that efforts to facilitate the enforcement of prohibition were contributing to the general impression that this
was being done at the expense of the individual’s constitutional rights and
protections; and that among the federal agencies concerned with enforcing
prohibition, some even within the same department, there was very little likelihood of any meaningful cooperation because of the “frictions” that existed
between them.63
The commissioners, however, failed to embrace a single, comprehensive
solution to the problem of enforcing the nation’s prohibition laws. Given the
politically divisive nature of what they recognized as an extremely sensitive social
issue and mindful of the “smoldering, bitter resentment” with which prohibition
was increasingly regarded by ever larger segments of the nation’s population, the commissioners were simply unable to produce a constructive synthesis of the very different conclusions to which they had individually arrived. Unable, therefore, to consider the one alternative, repeal, they felt restrained from addressing directly because doing so would seriously jeopardize the efficacy of state prohibition enforcement, the commissioners chose instead to redirect attention to those areas, administrative and enforcement policy reform, where a consensus among the commissioners could be more readily achieved.64 The
President, obviously disappointed that the Commission had failed to fulfill his
63 National Commission On Law Observance and Enforcement, Report On the Enforcement of the Prohibition Laws In the United States, January 7, 1931 (Washington, D.C.: Government Printing Office, 1931), 80-85. 64 Carl Marcy, Presidential Commissions (Morningside Heights, NY: King’s Crown Press, 1945), 39; Rumbarger, Profits, Power, and Prohibition, 19; Popper, The President’s Commissions, 34.
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hopes for the process in which they were engaged, released its preliminary
report for general consumption, reminding Congress and the public, in the
process, that much more work needed to be done before the remaining
questions that were being addressed by the Commission, including that
concerning the “respective responsibility of the federal and state government,”
could be resolved.65 In the uproar that followed, the President’s cautionary words
fell on deaf ears. Confronted with a deepening economic depression and
increasingly pressed to take action to counter its effects, Congress was in no
mood to risk the greater political repercussions that would inevitably follow from
any serious consideration it might give proposals that called for greater
expenditures and administrative reorganization.66 Such an investment of federal
resources and bureaucratic energy seemed almost counterintuitive given the
public’s growing opposition to prohibition generally and to the activities of federal
enforcement agencies, specifically, in matters that were viewed as being more
appropriately of local concern, a conclusion that seemed consistent with that of
the commissioners who had appeared united behind their suggestion that a more
proper role for the federal government might be found in the provision of
assistance and support rather than in direct intervention.
Among the congressmen who recognized this changing mood was James
M. Beck of Pennsylvania, a former solicitor general of the United States, a
constitutional scholar, and an eloquent and formidable opponent of prohibition,
who proposed, as a measure intended to check any further enlargement of
65 Letter to Congress, January 13, 1930, Herbert Hoover Papers, National Commission On Observance and Enforcement, Correspondence, January-May, 1930. 66 “The Wickersham Report,” The New Republic LXI, no. 790 (January 22, 1931): 237-238, 237;
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federal power and thus protective of traditional states rights, that Congress
“simply nullify the prohibition law by refusing to appropriate funds to enforce it.”67
Now more than ever before, the possibility of nullification weighed heavily upon the minds of prohibition’s supporters. Their cause had not been helped by the evident disagreement among the Commission members over the future of prohibition, a question that, because it remained unresolved, had convinced each to append their own views and concerns to the group’s preliminary report. But by doing so, the commissioners had conveyed their own skepticism as to whether prohibition, aside from any consideration to be given improvement of the prohibition laws or their methods of enforcement, could, in light of the prevailing social and political atmosphere, ever truly work.68 Nor had the President’s
handling of what had become a politically delicate matter, specifically, his somewhat disingenuous characterization of the report, helped to dispel the growing impression that the Commission had been compelled to forgo its
“independent judgment” in favor of prohibition.69 Take away Prohibition, the
columnist Walter Lippmann argued, and all the institutional and legal problems
associated with its enforcement, the very need for reform, the continuing
necessity for the President’s continuing exhortations regarding the citizen’s duty
of obedience to the law, would immediately disappear, and what would remain
67 William F. Swindler, Court and Constitution In the Twentieth Century (New York: Bobbs-Merrill Co., 1969), 268. 68 Kyvig, Repealing National Prohibition, 113; Andrew Sinclair, Era of Excess: A Social History of the Prohibition Movement (New York: Harper & Row, Publishers, 1964), 365. 69 “Confusion Worse Confounded,” The Nation 132, no. 3422 (February 4, 1931), 116; “Four Aspects of the Wickersham Report,” The New Republic 65, no. 845 (January 22, 1931): 311-313, 312.
427 would be only those problems arising from “the enforcement of ordinary criminal laws about which there is no difference of . . . opinion.”70
Time and Crime Wait For No Man
By reorganizing and redirecting its enforcement machinery and concentrating its attention upon the nation’s largest or most notorious distribution rings, the Hoover administration had hoped both to avoid undermining what support remained for prohibition and to resist assuming an ever increasing share
of the responsibility for its continuing enforcement.71 The President was especially sensitive to the difficulties “inherent in enforcing laws against social vices” and wished to rid the government’s campaign of any suggestion of a moral crusade, the political risks and disadvantages of which he was fully aware.72
Pursuing the “big fish,” as the major criminal gangs became known, was touted as a new strategy that appeared to offer, in one stroke, the greatest opportunity to limit the federal government’s enforcement activity to those special circumstances within which its enforcement capabilities could be most effectively employed73 and the involvement of the federal government, given the potentially
70 Walter Lippmann, “The Popular Dogma of Law Enforcement,” The Yale Review 19, no. 1 (September 1929): 1-13, 3. 71 Calder, The Origins and Development of Federal Crime Control Policy, 106. 72 Mabel Walker Willebrandt, the assistant attorney general in charge of prohibition enforcement, was pressured to resign shortly after President Hoover’s election in part because she had “used her title conspicuously” while campaigning on behalf of the Republican presidential candidate and had urged 2500 Methodist ministers “to embark on a holy crusade” against the Democratic candidate, a Catholic and avowed ‘wet,’ by using their congregations to swing the vote in Hoover’s favor. The speech caused an uproar and considerable embarrassment to Hoover. Robert A. Slayton, Empire Statesman: The Rise and Redemption of Al Smith (New York: The Free Press, 2001), 307-308. 73 “. . . last year we had a number of discussions as to organizing a . . . squad of men attached to headquarters staff here for the attack upon large prohibition conspiracies and operations in special localities. I think it would hearten the situation a good deal if we could revive this idea and make such an organized staff under some special attorney. We are being criticized very severely around centers like Chicago for failure to do anything in the larger conspiracies.” Letter to the
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interstate character and size of the operations targeted, more easily justified.
There was, however, little about the government’s approach that was either new
or certain to achieve success. The practice of using agents specially selected for
their ability and integrity and assigning them to locations raising significant
enforcement concerns had begun as early as 1921. But in the following years,
the long-term value of such “drives” was challenged by the local authorities upon
whom the ultimate success of the “new” strategy – their larger manpower
reserves, their more developed sources of information, and their familiarity with
the organizations involved in the “commerce” of illicit alcohol – would depend.
Nevertheless, this shift in the Prohibition Bureau’s basic enforcement strategy,
which, until then, had focused almost entirely upon the “small-time” bootlegger,
offered certain political advantages, among them, opportunities to reduce the
visibility of federal operatives in local communities, a growing irritant for many
citizens and a frequent source of public resentment, and, somewhat
paradoxically, to reaffirm the limited and supportive role of the federal
government as a deterrent to organized criminal enterprises.
With the Prohibition Bureau now fully ensconced within the Department of
Justice, it became a foregone conclusion that the Attorney General would
assume direction over the government’s campaign against major bootlegging
operations. Attorney General Mitchell, however, had serious reservations as to
whether gangsters could be “properly dealt with by so-called “drive[s]or [the]
marshaling of the agencies of justice.” Beneath this concern was another which
Attorney General, dated July 11, 1930, Hoover Papers, Department of Justice, Bureau of Prohibition, Correspondence, June-September, 1930.
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raised the question as to whether such federal initiatives were an appropriate use
of federal power.74 Uncomfortable with some of the methods, including
wiretapping, that were routinely employed by the prohibition agents, Mitchell,
much like the President whom he served, was also distressed by the “generally
aggressive character” of prohibition enforcement, which seemed to magnify, and
therefore distort, the degree to which the government bore responsibility for the
enforcement of prohibition as opposed to that of the states.75 The Prohibition
Bureau’s transfer, however, had been a measure which the President had
described as an important step toward the improvement of relations between the
Prohibition Bureau and the government’s prosecutors, and, as a loyal
subordinate, the Attorney General had no choice other than to accept the kind of
“marshalling” of the Department’s resources about which he had cautioned.76
There remained, of course, the question of whether the government’s enforcement program, bolstered by the President’s organizational reforms, could be as tightly controlled as the administration had envisioned.77
By 1928, Chicago was experiencing a frequency of violence and an intensity of gang warfare that set it apart from any other city of comparable size in the country. Described by one of its own alderman as “the only completely corrupt city in America,” Chicago’s reputation for lawlessness, its tolerance of vice, and its “entrenched system” of municipal corruption made it one of the most
74 Herbert Hoover Papers, Cabinet Officers, Department of Justice, Attorney General Press Releases, 1929-1930, 1. 75 Burner, Herbert Hoover, 219. 76 Hoover Papers, Cabinet Officers, Department of Justice, Attorney General Press Releases, 1929-1930, 2. 77 Public Papers, Herbert Hoover, 103.
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frightening examples of “the inadequacy of public opinion or state law to control
evil.”78 Appalled by the escalating violence and fearful of its impact upon the
city’s image and prospects for continuing economic development, a number of
the city’s leading citizens, primarily business and professional men, joined
together to pressure the municipal authorities into action and to eliminate the
influence of those criminal organizations that had become, in the years following
the adoption of the Eighteenth Amendment, so deeply rooted in the city’s social
and economic structure. The forces arrayed against the city’s underworld
represented a multitude of private interests and civic concerns, but were
increasingly united in their belief that federal intervention represented the only
means by which they could circumvent the ineffectualness and indifference of the
state and local officials involved. Barely two months after Hoover’s inauguration,
a delegation comprised of Chicago’s business elite and led by the publisher of
the Chicago Daily News and Judge Frank Loesch, the vice-president of the
Chicago Crime Commission, visited the President to request his assistance in
cleansing the city of organized crime.79 For the members of the delegation, the visit could not have been more timely made. Since 1926, when the City’s Better
Government Association had first petitioned the Senate’s Committee On
Immigration for aid, defending its request on the grounds that those engaged in the city’s most notorious criminal enterprises were aliens and, therefore, deportable, all attempts to involve the federal government in Chicago’s ongoing struggle to reestablish order were rebuffed as a matter of local concern and
78 Hoover, The Memoirs of Herbert Hoover, 276-277; Ethan Mordden, That Jazz: An Idiosyncratic Social History of the American Twenties (New York: G. P. Putnam’s Sons, 1978), 138-139. 79 Calder, The Origins and Development of Federal Crime Control Policy, 109.
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beyond the jurisdictional authority of the federal government.80 In 1927,
however, through the intercession of the city’s Crime Commission and Vice-
President Charles G. Dawes, a leading Chicago banker prior to the 1924 election
and the nation’s first Comptroller of the Currency,81 a new U.S. Attorney was
appointed for the Northern District of Illinois. Though equipped with an expanded
staff, additional funds raised through appeals to anonymous donors, and a
specially assembled team of prohibition enforcement agents, the U.S. Attorney
was unable to obtain the evidence that would have been necessary to indict the
underworld figures targeted by his investigation. Federal agents, despite their
wiretaps, raids, and the other tactics to which they resorted, had simply been
unable to prove the complicity of those who had been so carefully insulated from
the day to day activities of their criminal enterprises, further evidence of the
government’s lack of sophistication and experience in law enforcement.
In the last months of the Coolidge presidency, Dawes again attempted to
convince the President of the need to expand the Treasury Department’s
investigation of the Chicago underworld. Only the year before, the United States
Supreme Court had decided the case of United States v. Manly S. Sullivan,82 which, in construing the income tax law in such a way as to require people to
80 Dennis E. Hoffman, Scarface Al and the Crime Crusaders (Carbondale: Southern Illinois University press, 1993), 26-27. 81 Dawes, the son of a general, had distinguished himself as General Pershing’s chief procurement officer, returning to Chicago after the war where he became known both as a moving force in the removal of one of that city’s most corrupt mayors and as a recipient of the Nobel peace prize for his work on German war reparations. His interest in such gangland figures as Alphonse Capone and others was encouraged, in part, by his brother, a member of Chicago’s World’s Fair planning committee, with whom Dawes shared concerns regarding the gangster’s influence upon the city’s administration and the city’s sullied reputation. Richard O’Connor, Black Jack Pershing (Garden City, NY: Doubleday & Company, Inc., 1961), 40, 196-197; Paul R. Leach, That Man Dawes (Chicago: The Reilly & Lee Company, 1930), 190, 192. 82 274 U.S. 259 (1927)
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report all income they may have gained even if it were earned illegally, provided
the government with a potent weapon against organized crime. The Court’s
decision meant that the government could now utilize its powers of taxation as an
enforcement tool in areas only distantly related to the collection of revenue for
which the Internal Revenue Service remained responsible. Finally relenting,
Coolidge authorized the use of the IRS’ special intelligence unit to secure
evidence that eventually achieved, under his successor, the breakthroughs necessary to secure the conviction of gangland leaders who had been the primary focus of the original investigation.83 Success, however, soon translated
into rising public expectations, made all the more urgent by a deteriorating economy and growing social unrest. Even as the IRS investigators shifted their attention to the City of New York where the revelations of the Seabury investigation regarding municipal corruption, payoffs, and official collusion with known gangsters were becoming daily fare in the nation’s news media, a wary
President urged caution in the use of this relatively new enforcement technique, noting that the states themselves possessed “ample laws covering such criminality” and did not require the federal government to do anything more than to offer its encouragement and occasional support.84
In all fairness, the President may well have had reason to be concerned.
The fact that some of the nation’s most notorious organized crime figures had
been indicted and convicted of tax evasion as opposed to the more violent
83 United States Department of the Treasury, Internal Revenue Service, 75 years of IRS Criminal Investigation History, 1919-1994 (Washington, D.C.: Dept. of the Treasury, Internal Revenue Service, 1996), 34. 84 Calder, The Origins and Development of Federal Crime Control Policy, 115.
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crimes they were suspected of having committed did little to elevate popular
respect for prohibition. At a time when a sizeable portion of the population was
more inclined to characterize the government’s continuing enforcement of
prohibition as clear evidence of its repressive tendencies, the selective use of the
income tax laws seemed guaranteed to produce greater resentment not only as
an egregious abuse of power, but as an infringement upon the exercise of local
police powers as well. When pressed to explain why, in light of the government’s
successes in Chicago, his administration had seemed so reluctant to move more
aggressively against organized crime figures elsewhere in the country, the
President noted that the government’s concentrated effort had only been
intended to strengthen its “prosecuting machinery” in the area, not to engage in a
“general investigation.” “The major responsibility,” he wrote, “must rest with local
communities and I do not want the Federal Government to get in the position of
undermining this responsibility.”85 With an irony that must have been appreciated
by some of its members, the Wickersham Commission, in issuing its report on
prohibition enforcement, appeared to agree with the President, but for reasons
that must have left him greatly deflated. In light of its present function,
capabilities, manpower and funding levels, the Commission noted, the Prohibition
Bureau could not likely sustain the kinds of intensive and prolonged
investigations that would be necessary to achieve results similar to those
obtained from the government’s investigation in Chicago. Furthermore, the
Commission had concluded, given the unevenness of prohibition enforcement
85 Letter from Herbert Hoover to Paul J. McCormick, August 26, 1932, Hoover Papers, Subject File, Crime, 1931-1932.
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throughout the various states, it was also quite unlikely that the Bureau would
ever be able to make the necessary adjustment, unless the states became far more willing to assume their fair share of the responsibility for enforcing prohibition overall.86
In July, 1933, the administration’s effort to preserve the highly specialized and “supplemental” nature of federal law enforcement was dealt a virtual body
blow by an event as unforeseen as it was shocking. That month, the aviator
Charles Lindbergh’s infant child was abducted in what would become known as the “crime of the century,” an event that provoked an outcry for federal intervention so great and sustained as to prove ultimately irresistible. Prior to
1932, interest in kidnapping for ransom, until then a practice more commonly associated with competing underworld factions, had begun to grow. In such communities as St. Louis, Missouri, where the city’s proximity to the state’s boundaries had long posed jurisdictional problems for the local authorities, a series of abductions involving several of the city’s wealthier citizens vividly illustrated the cross-jurisdictional challenge of what was otherwise a local crime.87 At the urging of the chamber of commerce and armed with the results
of a general survey conducted by one of the city’s major daily newspapers, city
officials approached the state’s congressional delegation with a plea for federal legislation in the matter. The introduction of bills in both houses of Congress in
December, 1931, portions of which would later be combined to become known
86 National Commission On Law Observance and Enforcement, Report On the Enforcement of the Prohibition Laws In the United States, 103. 87 Virgil W. Peterson, Crime Commissions In the United States (Chicago, IL: Chicago Crime Commission, 1945), 13; Noel Behn, Lindbergh: The Crime (New York: The Atlantic Monthly Press, 1994), 80.
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as the Patterson-Cochran Bill, soon followed, but the proposals, lacking any real support among Congressmen reluctant to take on additional anti-crime responsibilities, languished in their respective committees until the March 1,
1932, abduction of Lindbergh’s son.88 Charles Lindbergh’s stature among the
American people had no equal at the time, and the victimization of his family
struck many as a direct assault upon all that he symbolized for a nation that not
only admired what had been a truly spectacular feat, but also valued his modesty and quiet confidence, the genuineness of his solidly American character.89 The kidnapping refocused attention upon the still pending bills and overcame the opposition of Congressmen who had initially viewed such legislation as a
“dangerous incursion on the police powers reserved for the states.”
Representative Earl C. Michener of Michigan, who had warned his fellow
Congressmen against enacting laws that punished conduct the states could more effectively deter, would speak for many of them when he announced his intention to vote in favor of the federal kidnapping statute, but sternly warned that the act should “not become a precedent for more legislation giving the Federal
Government concurrent authority with the States in enforcing police regulations and laws dealing with matters in which the States are primarily interested.”90
Clearly, the government’s experience with prohibition enforcement was leaving an indelible mark upon federal-state relations and creating a legacy for federal
88 Horace L. Bomar, Jr., “The Lindbergh Law,” Law and Contemporary Problems 1, no. 4 (October 1934), 435-436; William J. Helmer, “The Depression Desperados: A Study In Modern Myth-Making,” Mankind 5, no. 2 (August, 1975), 41; Alan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University Press of Kansas, 2004), 41. 89 Mordden, That Jazz, 275. 90 Sanford, J. Ungar, FBI (Boston: Atlantic Monthly Press, 1976), 70; 75 Cong. Rec., 72nd Cong., 1st sess., 1932, H 13,283-13,284.
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policing that would remain a decisive factor in the government’s anti-crime
program.
Policing the “Twilight Zone”
Franklin D. Roosevelt’s candidacy in 1932 was launched upon a platform
that avoided addressing any aspect of crime other than prohibition. Mindful of the
nation’s traditional disapproval of large federal expenditures, it “minimized the
role and cost of national government,” the latter a theme that was raised again in
FDR’s inaugural address and which was subsequently reflected in a series of
early-term budget-cutting and force-reduction measures that affected every
agency of the government.91 The Justice Department’s celebrated reaction a
heavily sensationalized outbreak of “banditry” was still several months away, and
the administration’s most pressing problems concerned, instead, issues relating
primarily to unemployment, public relief, and economic stability. The widely
anticipated elimination of prohibition as a suitable area for federal policing - a
consequence of a “faltering economy” and of social, political, and cultural
developments that had “come together with [such] astonishing force” as to
undermine support for prohibition within the electorate92 - left unanswered,
however, many questions concerning the future direction and development of
federal law enforcement. Roosevelt’s attitude toward federal policing – clearly
one influenced by the government’s attempts to pressure the states into a more
91 Edgar E. Robinson, They Voted for Roosevelt: The Presidential Vote, 1932 – 1944 (Stanford, CA: Stanford University Press, 1947), 14; Inaugural Addresses of the Presidents of the United States From George Washington 1789 to Lyndon Baines Johnson 1965. 89th Cong., 1st Sess. House Doc. No. 51. (Washington, D.C.: U.S. Government Printing Office, 1965), 237. 92 Kermit L. Hall, The Magic Mirror: Law In American History (New York: Oxford University Press, 1989), 251; Thomas R. Pegram, Battling Demon Rum: The Struggle for a Dry America, 1800- 1933 (Chicago: Ivan R. Dee, 1998), 167.
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vigorous enforcement of prohibition - had come to light in the summer of 1929,
during the annual Governors’ Conference in New London, Connecticut, when he
warned of the national government’s “dangerous tendency . . . to encroach upon
state supremacy in police powers and [the] administration of justice” and urged
his fellow governors to resist such expansive tendencies on the part of the
federal government by ensuring that their criminal laws were made more uniform
in substance and procedure and by modernizing their police forces to facilitate
and encourage cooperation between them.93 It is, of course, likely that
Roosevelt’s cautionary message was motivated by several considerations, among them, a strong desire to direct attention to himself as a potential presidential candidate, but the principles to which he alluded were not of a kind that he would have so cavalierly abandoned once in office. Even as the New
Deal’s programs gained momentum and as the President’s penchant for creating new bureaucracies rose to greater heights, the President remained careful to cultivate, without weakening, a system of state and local institutions that was to
play an important, even vital, role in his administration’s planning for an
expanded federal program.94 If, as Roosevelt and his advisors believed, the
nation was confronted with a crisis in the field of law enforcement nearly as
serious as those crises prevailing in other areas of national life, it did so because neither the states, nor their localities had been able to cope with the changes that
93 Frank Freidel, Franklin D. Roosevelt: The Triumph (Boston: Little, Brown and Company, 1956), 74. 94 Matthew J. Dickinson, Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch (New York: Cambridge University Press, 1997), 65-67; William M. Lelter, “The Presidency and Non-Federal Government: FDR and the Promotion of State Legislative Action,” Presidential Studies Quarterly 4, no. 2 (Spring 1974), 101.
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had occurred in the traditional patterns and structure of crime, changes for which
the local authorities had been too ill-prepared to meet.
Neither Roosevelt, nor his predecessor ever hesitated to acknowledge the
federal government’s supplemental or secondary role relative to the larger
enforcement responsibilities of local government. Both, in fact, had been
cautious about assuming any new crime fighting responsibilities that could easily
have exceeded the federal government’s jurisdictional authority or placed too
great a strain upon its organizational capabilities. But faced with a crisis of
confidence in the nation’s ability to deal with crime and forced to act within the
constraints of a constitutional system that apportioned power and responsibility
among different levels of government, each had acted in ways that revealed their differing views regarding the elasticity of a federalist system within which a
solution to the problem needed to be found. For Hoover, the answer lay in
bringing greater efficiency and rationality to the fulfillment of those responsibilities
assigned to the national government, a part of a larger whole to which the federal
government, acting within its own sphere of responsibility, would make its
contribution, but the overall achievement of which lay beyond its jurisdictional
powers and would greatly depend upon the separate powers of the states and
local governments. FDR, on the other hand, was not reluctant to embrace a
certain amount of centralization to create the cooperative arrangements that he
saw as necessary to effect solutions to problems that were too large to be
resolved on a local basis. Cooperative federalism thus became the underlying
rationale for the administration’s new war on crime, the means by which federal
439 leadership and modern enforcement methods could be more widely promoted amidst wary local officials who were offered assurances of the administration’s desire to preserve “local control over the effects of government [policy] locally” and a public made skeptical by a troubled history of federal prohibition enforcement.95 “The genius of the New Deal,” FDR’s attorney general would proclaim, “is that it contemplates the reactivation of the doctrines of cooperation,” but how that process of reactivation was to take shape was a question for which there was no immediate answer.
While crime and crime prevention remained a constant worry, by themselves they held little interest for the new President. A charter member of the National Crime Commission, a private organization established by a group of businessmen and industrialists, including the president of U.S. Steel, in 1925,
Roosevelt had not noticeably shared the members’ concern for the rising incidence of property crime, although he had applauded their efforts to promote uniform state crime legislation and the placement of restrictions upon the sale and use of firearms. Other than its sponsorship of a national crime conference in
1927 and its publication of a number of tracts detailing the advantages that could be derived from criminal statistics and local crime initiative, the Commission had done little during its four years of existence toward accomplishing much else, a record of unfulfilled potential for which it had been severely criticized by such notable figures as John H. Wigmore, dean of the law school at Northwestern
95 Daniel J. Elazar, The American Partnership: Intergovernmental Co-Operation In the Nineteenth Century United States (Chicago: The University of Chicago Press, 1962), 324.
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University.96 It was not, in fact, until after he had become governor of New York
that Roosevelt was forced, in the summer of 1929, to address the issue of crime
and punishment from the perspective of a public official and policy-maker. Prison
overcrowding and a dysfunctional parole system resulted that summer in an
outbreak of rioting in two of the state’s largest prisons. Despite an atmosphere of
growing intolerance for crime and criminals, Roosevelt’s response exhibited little
of the temporizing for which he was to become famous as president. In a series
of steps that closely paralleled the program of reform outlined the previous year
by then President Hoover, Governor Roosevelt appointed a commission to
investigate conditions tin the state’s prison system, arranged for it to have access to the country’s most renown penologists (including Sanford Bates, the director of
Hoover’s newly established federal Bureau of Prisons), and later expanded the
scope of its inquiry to include other related areas of concern. Like Hoover, he did
not wait for the commission’s recommendations before taking action, but issued
instructions and sought funds to implement many of the administrative reforms
that had been deferred by his predecessors in office. Unlike Hoover, however,
Roosevelt was painfully conscious of the fact that he could only ameliorate, not resolve the problems that had contributed to the violence and destruction of the riots that had occurred in the state’s prisons. There was, moreover, yet another lesson that he drew from the experience: that in all matters pertaining to the suppression and punishment of crime, there would be no unanimity of opinion
96 Leonard D. White, “Public Administration, 1927,” The American Political Science Review 22, no. 2 (May 1928), 343; Nathan Douthit, “Police Professionalism and the War Against Crime In the United States, 1920s-30s,” George L. Mosse, Ed., Police Forces In History (Beverly Hills, CA: Sage Publications, Inc., 1975), 327.
441 regarding a subject of such complexity as to defy any single solution or capable of such differing interpretations, neither among those whose knowledge qualified them as experts in the field, nor among the public at large.97 It would not be long, however, before the whole question of prison conditions and court reform would lose its immediacy or importance in the face of a growing financial and economic crisis.
Roosevelt’s choice of Senator Thomas Walsh of Montana to be his attorney general suggests that his decision was motivated by a number of political considerations, not the least of which was the restoration of the Justice
Department’s prestige after more than a decade of prohibition enforcement and the occasional internal scandal. The senator’s reputation for fair and independent judgment readily conformed to the President’s cabinet plans and reflected Roosevelt’s penchant for leaving the management of his executive departments and their respective areas of responsibility to subordinates upon whom he felt he could rely.98 Undoubtedly, the President-elect hoped that he would be able to take advantage of Walsh’s considerable influence among his colleagues in the Senate, but his long acquaintance with the Senator - Walsh had collaborated with FDR in the restructuring of the Democratic Party’s national apparatus after its electoral defeat in 1924 and had played a critical role as the party’s convention chair at the 1932 convention from which FDR had emerged as the party’s presidential candidate – must have carried some weight in his
97 Kenneth S. Davis, FDR: The New York Years, 1928-1933 (New York: Random House, 1985), 87-88; Bernard Bellush, Franklin D. Roosevelt As Governor of New York (New York: Columbia University Press, 1955), 58-75. 98 Dickinson, Bitter Harvest, 211; Arthur M. Schlesinger, Jr., The Politics of Upheaval: The Age of Roosevelt (Cambridge, MA: The Riverside Press, 1960), 138.
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decision.99 Walsh’s death, which occurred shortly after the President’s
announcement regarding his appointment, was unquestionably a major blow to
Roosevelt’s plans and left unresolved the question as to who would fill the post of
attorney general, at least until such time as the search for a suitable candidate could recommence.100 An interim assignment was given to yet another
Democratic Party regular, Homer S. Cummings of Connecticut, who had broken with the party’s old line progressive faction to promote FDR’s candidacy and had ably served Roosevelt as a convention floor manager, a service for which he was initially rewarded with an appointment as Governor General of the Philippines.
Cummings, who had long before acquired a reputation as one of his state’s
leading municipal reformers, had served briefly in President Wilson’s close circle
of advisers, but in the years following Wilson’s departure, he had become
increasingly alienated from the kind of politics that became so characteristic of
the Harding-Coolidge era.101 Asked to attend to the legal issues arising from the
President’s resolution of the banking crisis, his deft handling of this and other
New Deal legislation soon led to his permanent appointment as attorney general
99 Ralph M. Goldman, The National Party Chairmen and Committees: Factionalism At the Top (Armonk, NY: M. E. Sharpe, Inc., 1990), 319-320; Edward J. Flynn, You’re the Boss: The Practice of American Politics (New York: Collier Books, [1947] 1962), 111; J. Leonard Bates, Senator Thomas J. Walsh of Montana: Law and Public Affairs From TR to FDR (Chicago: University of Illinois Press, 1999), 328. 100 Stephen Hess notes that, following Walsh’s death, four other serving Senators were offered but declined to accept the post, compelling evidence of the President’s political motivation in his choice of Attorney General. Stephen Hess, Organizing the Presidency (Revised Ed.) (Washington, D.C.: The Brookings Institution, 1988), 25. 101 Goldman, The National Party Chairmen, 334-335; David L. Mazza, “Homer S. Cummings and Progressive Politics From Bryan Through Wilson, 1896-1925,” Ph.D. Dissertation (St. John’s University, 1978), 218, 250, 256.
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in April of 1934 and to his increased involvement in a wide variety of issues with
which the new administration was preoccupied.102
The pace at which the administration undertook to produce new programs
in the hope of alleviating the worst aspects of the depression left the Justice
Department increasingly and not always successfully struggling to implement or
defend a growing mix of policy and legal issues. Questions concerning criminal
law were given less attention by the hard pressed Attorney General. Cummings,
who tended to effect a “relatively easygoing and indolent” administrative style, had decided early on to retain a number of his predecessor’s principal
subordinates, including Sanford Bates of the Bureau of Prisons and J. Edgar
Hoover of the Division of Investigation, a decision intended to maintain some degree of continuity in the Department’s enforcement and criminal justice policies.103 True to style, the President rarely interceded in shaping his attorney
general’s agenda, preferring instead to endorse rather than to initiate whatever
directions the Justice Department might choose to follow, an approach he
abandoned only once, when it had become apparent that Cumming’s choice of
solicitor general was incapable of defending the administration’s new policy and
program initiatives.104 Cummings himself had little time to deal with issues
concerning crime and even less to devote to the development of new anti-crime
initiatives. Virtually inundated with new responsibilities that ranged from a place
102 Diary, January 3, 1932 – April 7, 1933, Homer S. Cummings Papers. University of Virginia, Charlottesville, VA., 122, 150-152, 165. 103 Homer S. Cummings, Diary, January 3, 1932 to April 7, 1934, Homer S. Cummings Papers. University of Virginia, 155-156. 104 Arthur M. Schlesinger, Jr. The Politics of Upheaval (Cambridge, Massachusetts: The Riverside Press, 1960), 261.
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on the President’s Committee On Economic Security,105 which had been
organized to consider a host of social welfare proposals, including social security,
to the unification and centralized management of all government litigation, the
attention the Attorney General gave to the subject of federal law enforcement
was limited to the implementation of congressionally mandated and depression-
driven budget, personnel, and salary cuts.
It would soon become evident that neither the President, nor those within
his administration who were most often recognized by their contemporaries as
the New Deal’s foremost “experts” on crime had any practical ideas as to how the
federal government might respond to the nation’s growing concerns regarding
crime and its suppression. Raymond Moley, a professor at Columbia University
whose expertise in public administration and police organization had first brought
him to then Governor Roosevelt’s attention, was, in fact, detailed to the State
Department where his tireless capacity for work and organizational skills were
greatly needed to contend with the world-wide ramifications of the depression.106
Louis Howe, the former newspaper reporter who had served the President as a political adviser long before he had been offered, at Roosevelt’s insistence, a paid position with the National Crime Commission, had become the President’s secretary, a post that involved no real policymaking responsibility and effectively removed him from the network of public and police officials who had served him so ably as sources of advice and information.107 The collapse of the stock
105 Kenneth S. Davis, FDR: The New Deal Years, 1933-1937, A History (New York: Random House, 1986 [1979]), 448. 106 Frank Freidel, Franklin D. Roosevelt, 262-263. 107 Alfred B. Rollins, Jr. Roosevelt and Howe (New York: Alfred A. Knopf, 1962), 369.
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market in 1929 and the impact of the depression upon the nation’s banking
system had not only done much to rearrange the national government’s priorities,
but had also bolstered demands for new regulatory controls that were made
stronger by provisions for criminal sanctions. The magnitude of this crisis and the
heated outcry it produced were enough, therefore, to redirect scarce federal
investigative resources away from their customary areas of operation to the
investigation of allegations of market fraud, embezzlement, and the
misappropriation of funds.108 This preoccupation with what would someday
become known as “white collar” crime reached new heights with the disclosures
made during the Senate Committee On Banking and Currency’s inquiry concerning the nation’s financial and banking industry and undoubtedly influenced the President’s decision to proclaim, as late as January of 1934, almost a year after he had assumed office, that the government’s interest in the investigation of fraudulent stock practices, “tax evasion, and banking improprieties” remained its first order of business and the continuing focus of its enforcement authority. “Crime[s] of organized banditry, cold-blooded shooting, lynching and kidnapping,” the President had noted, though still a matter of concern, would be relegated to a place of lesser importance on the national government’s agenda.109
The violent deaths of four peace officers, including one federal agent, in
Kansas City, on June 17, 1933, since touted as a turning point in federal policing,
had little effect upon the efforts then underway to constrict federal criminal law
108 Melvin H. Purvis, American Agent (Garden City, N.Y.: Garden City Pub. Co., 1938), 243. 109 Fred L. Israel, Ed., The State of the Union Messages of the Presidents, 1790-1966 (New York: Chelsea House Publishers, 1967), 2809.
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jurisdiction and to reorient the focus of federal enforcement activity. Only three
months before, the Bureau of Prohibition, now a fully functioning unit of the
Department of Justice, had directed its agents to refrain from any undercover or
wiretapping activity except that which might be directed against specially
designated targets, a measure that effectively eliminated any further enforcement
activity against those establishments (speakeasies) dispensing alcohol locally
and which was intended to be a step preliminary to the consolidation, later that
year, of the Bureaus of Prohibition and Investigation.110 A more careful scrutiny of the Department’s reorganizational plan, however, revealed that it not only called for, but would likely result in the wholesale discharge of all of the
Prohibition Bureau’s field staff from federal service, bringing to an end what for many had been the most visible and controversial exercise of federal police power to date. In the time it had remaining, however, the Prohibition Bureau had been expected to adjust to what had become an especially difficult and fiscally constraining operational environment in which decisions regarding the utilization of available resources often meant substantial fluctuations in the attention given
specific enforcement responsibilities. In that respect, the Prohibition Bureau was
hardly alone.
During the ten years since Harlan Stone had first demanded that the
Bureau of Investigation refrain from doing anything more than collecting evidence
of violations of federal law, the Bureau, now bereft of its intelligence division and
possessing a more narrowly defined authority, had emerged from within the
110 Bureau of Prohibition, Circular Letter No. 179, March 3, 1933, Homer S. Cummings Papers, Prohibition Bureau, March – November, 1933, Box 194.
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federal government’s bureaucracy as a model organization: efficient, well-
structured, and tightly controlled. Such achievement had been possible, in great
part, because of its bureaucratic anonymity, its aversion to controversies of any
kind, its administrative autonomy, and the “constancy” of its enforcement duties,
all factors that were reflected in the relatively unchanging size of the operational
sums allocated to it in the years between 1924 and 1932.111 This state of affairs
remained unchanged even as the Bureau acquired an entirely new responsibility
following passage of the Federal (Lindbergh) kidnapping act, a factor attributable
as much to its lack of recognition or standing among police circles as it was to
Attorney General Mitchell’s continuing discomfort with the enforcement of a statute he viewed as so plainly intrusive upon local police powers and prerogatives. Cummings, however, was of a far more flexible, though not entirely different mind regarding the challenges that lay before him. Arguing that the unprecedented and sometimes experimental nature of the New Deal’s legislation program had become necessary because of emergency conditions for which there was no historical precedent, the Attorney General was quick to offer assurances that the legislation and policies produced in response to these emergency conditions would be just as quickly rescinded once the conditions giving them life had themselves been resolved or eliminated. In his first radio address to the nation, which was broadcast in June, 1933, only days before the incident in Kansas City, the Attorney General, mindful of the sensitivity with which the subject of federal policing needed to be handled, limited his remarks to a
111 Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, NY: Viking Press, 1956), 150; Poveda, Lawlessness and Reform, 17; Fred J. Cook, The FBI Nobody Knows (New York: The Macmillan Company, 1964), 264.
448
discussion of his “Department, its problems and policies,” using this opportunity to reiterate his and the administration’s strong commitment to the maintenance of a “federal equilibrium,” while making no reference to crime or policing.112 In the face of a pressing national crisis with potentially enormous implications for the
“form and texture of Government,” the public memory and political legacy of prohibition enforcement had become like an ill wind that was best avoided.113
112 Homer S. Cummings, “The Department of Justice and the New Deal,” Radio Address, June 10, 1933, Homer S. Cummings Papers, New Deal Legislation, August, 1933 to June, 1938, Box 185. 113 Ibid.
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Chapter 10
THE CONFIDENCE MEN
But neither the wisest leadership nor the best brains the government can summon to its aid, nor the most enlightened legislation it can devise, nor the most efficient administration its departmental heads can give, will alone solve our problems. What we can do is to shape and marshal and coordinate the constructive and recuperative forces of the nation; and legislate so they can operate. But the government cannot put life into the dead nor courage into the coward. When all is said and done, the ultimate verdict rests with our citizens. Homer S. Cummings, Attorney General, 19331
In the summer and early fall of 1934, news regarding the deaths of the four law enforcement officers in Kansas City and more sensationalized reporting regarding the kidnapping of several prominent businessmen underscored the nation’s deepening anxieties over the growth of crime. Increasingly concerned about the violent behavior of dangerous criminals, the public remained sharply critical of local law enforcement officials and increasingly more frustrated with their inability to maintain order during a period of rising social tensions and economic distress. Pressure on all levels of government to take some form of corrective action continued to mount. Individual congressmen, among them
Fiorello LaGuardia of New York, proposed solutions that, for the most part, reflected their constituencies’ distinctive enforcement concerns, revealing, in the process, just how widely dissimilar were the nation’s various experiences with crime and its effects. The Wickersham Commission, representing the nation’s latest and most comprehensive examination of its crime problem, while acknowledging the serious deficiencies in the nation’s police forces, had
1 Carl Brent Swisher, Ed., Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939 (New York: Charles Scribner’s Son, 1939), 28.
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proposed a series of organizational reforms that offered little promise of
immediate relief, but which the Commissioners themselves conceded would
require considerably more “time and a well-developed plan,” before success could be more fully assured.2 But the Commission, aside from identifying and
lending an aura of authority to what would soon become more widely recognized
as model attributes and values of modern policing,3 had also advocated in favor
of a more aggressive role on the part of the states to combat those criminals
whose advantage lay in their ability to exploit the “poorly organized or wholly
incompetent police departments” that comprised society’s primary defense
against their destructive and sometimes violent behavior.4
Though a subject of special concern to the states, including those two or
three who had assumed responsibility for the policing of their principal urban centers, the organizational variety and “wide divergence in the methods” and
procedures utilized by local officials to detect crime and apprehend lawbreakers,
along with broad differences in their policing capabilities and responsibilities,
posed enormous challenges to the few state officials and others who were
committed to the improvement of law enforcement generally. Criminals had
become more organized and mobile, more experienced and better able to evade
capture, and crime itself had spread outward from its customary place of
2National Commission on Law Observance and Enforcement, Report on the Police (Washington, D.C.: United States Government Printing Office, 1931), 49. 3 The Commission’s study of the nation’s police had been the work of principally one man, August Vollmer, whose contributions had been recognized and promoted among the Commissioners themselves by their principal administrator, Max Lowenthal, an expert in finance and bankruptcy, a protégé’ of Felix Frankfurter, and a man who served as a deputy counsel in the Senate’s inquiry into Wall Street abuses before gaining notoriety as a serious critic of the Federal Bureau of Investigation and its director J. Edgar Hoover. Joseph P. Lash, Dealers and Dreamers: A New Look at the New Deal (New York: Doubleday, 1988), 81, 156. 4 National Commission on Law Observance and Enforcement, Report On the Police, 124.
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operation, the nation’s urban centers, into the states’ rural areas and villages
where local policing systems, isolated and without proper resources or training,
were unable to offer the kinds of protective services never contemplated by the communities they served and which were responsible for their continuing
function.5 The states themselves were hardly in a position to provide the funds,
training, and other resources that could have benefited, by emphasizing
standardization and coordination, the activities of these very different and
virtually independent systems. Fewer than half the states, outside of their
correctional systems, employed law enforcement officers, and the absence of
such agencies deprived them of the institutional means by which they could have
addressed what was a growing crisis in law enforcement. That situation did not
begin to improve until after the onset of the Great Depression, and then only after the programs of the New Deal began to stimulate improvements in the states’ administrative capabilities. Much as they had defended the exercise of local power against the expanded role of the federal government, the principles of
“home-rule” or self-government had long stood as a bulwark against the encroaching tendencies of the states’ centralized administration and more expansive jurisdiction. American traditions of government were based upon the tenet that “whatever functions the local community [could] carry on for itself in an
efficient and adequate manner, it should be permitted to perform,” and that had
always included “police protection.”6 But changes in crime and the manner in
5 Joseph McGoldrick, Law and Practice of Municipal Home Rule, 1916-1933 (New York: AMS Press, Inc., 1967), 333-334; Arthur C. Millspaugh, Crime Control by the National Government (New York: Brookings Institution, 1937), 32. 6 National Commission on Law Observance and Enforcement, Report on the Police, 124.
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which it was committed had soon outstripped the capacity of most communities
to suppress such activity, much less to deter it, in the absence of a system that
could more effectively cope with the multi-jurisdictional nature of crime, the
increasingly complex and forensic nature of criminal evidence and the process of
detection, and the mobility and resources of the criminal.
The result was a growing awareness on the part of local officials and
police that whatever political credibility and professional standing they hoped to
achieve would depend almost entirely upon their ability to maintain order. The
question with which they were increasingly preoccupied as a group, they were
coming to realize, concerned conditions and a wide diversity of criminal activity
against which they, standing alone, had few sustainable defenses. Local, state,
and federal enforcement officials had already demonstrated a capacity for close
cooperation in matters concerning important national interests. Given such a
history, the present crisis seemed to offer yet another and certainly compelling
reason to pursue a more broadly based and better coordinated campaign
through which their common goal could be more readily achieved. In the 1930s,
such thinking on the part of local law enforcement officials coincided with a
resurgence of interest in state policing and a greater commitment on the part of
the states toward providing incentives for increased coordination among local
police forces. Until then, the states’ experience with state policing had been
anything but trouble-free. The concept of a state police force was still closely
identified with the once reviled “paramilitary state constabularies” that had originally been created as a means of dealing with the growing frequency of
453
industrial strikes and political agitation. This association made practically any
proposal concerning a state supported police force an especially sensitive one
and likely to draw opposition from those groups, particularly organized labor, for
whom such police organizations represented a throwback to a more brutal and
violent era. But sentiment favorable to state policing, particularly in the mid-west
and western regions of the country where police resources were scarce and
more widely dispersed and where crime had become increasingly mobile and
elusive, continued to grow. In the late 1920s, the state police movement began
to direct attention to an entirely new and less politically divisive enforcement role
more closely connected to the states’ highway systems and the enforcement
needs of its rural and suburban communities.7
Gradually, the concerns that had prevented state involvement in the coordination of police services and which largely reflected old fears regarding the threat that state involvement in local policing would pose to local police organizations, lost their appeal. Despite its broad and imprecise mandate, the
Wickersham Commission had succeeded in lending the “imprimatur of national authority” to a number of police reforms that were to help redefine policing on a
local level. The Commission’s detailed criticism of local criminal justice programs
and its calls for improved police training, streamlined court procedures, and more
efficient probation and parole systems made the problems of the police increasingly visible. Of equal importance was its clear condemnation of police brutality and the misuse of force, once the bedrock of police power, which helped
7 H. Kenneth Bechtel, State Police In the United States: A Socio-Historical Analysis (Westport, Connecticut: Greenwood Press, 1995), 140, 153; Merle T. Cole, “Birth of the West Virginia State police, 1919-1921,” West Virginia History 58, no. 1 (Fall 1981), 4.
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greatly to generate increased public support for an image of policing that
emphasized a more disciplined, “scientific” or forensic approach to policing and
emphasized the importance of converting local law enforcement into a more
coherent system.8 In the year 1935 alone, as many as eleven states took steps
to organize such statewide services, allotting funds for the establishment of state
police forces, police laboratories and identification systems, and exploring the
use of interstate compacts to facilitate the apprehension and extradition of
suspects who had fled their jurisdictional reach and to encourage the exchange of information concerning the identities and activities of known criminals.9 What has become apparent since, however, is that among all the factors that contributed to the transformation of American policing into a more cohesive force, none exerted more influence than did the Great Depression itself. It was, after all, the nations’ depressed economy and the pressure it placed upon the diminishing revenues of local, municipal, and state governments that encouraged the adoption of more standardized police methods and organizational structures, which, in turn, had facilitated the development of more frequent patters of communication and better relations among law enforcement agencies of all kinds. Tighter budgets and increased demand for their services forced police organizations to consolidate their operations, to eliminate less efficient practices, and to rely more heavily upon the crime data analysis, new planning techniques,
8 Malcolm M. Feeley and Austin D. Sarat, The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration (Minneapolis: University of Minnesota Press, 1980), 38- 39; Frank Popper, The President’s Commissions (New York: The Twentieth Century Fund, 1970), 11; Lawrence M. Friedman, Crime and Punishment In American History (New York: HarperCollins, Publishers, 1993), 361. 9 Bechtel, State Police, 44.
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and more centralized control methods.10 Despite the financial sacrifices that
were called for, such practices encouraged many communities to increase their
investment in new or emerging police technologies, transportation, and, given the
greater pools of jobseekers available, in procedures by which the selection and
retention of more capable personnel could be assured.
Such developments were not only consistent with other signs of growing
public support for a national enforcement effort, but they laid the groundwork
upon which a concerted attack upon crime could be implemented without giving
rise to fears concerning the efficacy of local self-government and independence;
a nationwide campaign for which the likelihood of any “duplication” or overlapping
responsibilities among the different levels of government involved could be
viewed less as an affront to the principles of federalism than as a more efficient,
pragmatic, and comprehensive use of the nation’s anticrime resources.11 All that
remained to be found was an institution capable of providing the kind of
leadership that could inspire such concerted action and which could obtain the
public support that would be necessary to ensure its eventual success. In the
mid-1930s, such power lay with the national government, and so it was to the
federal government that local and state officials turned for the leadership they
saw as essential to their own success.
10 Samuel Walker, A Critical History of Police Reform: the Emergence of Professionalism (Lexington, Mass.: Lexington Books, 1977), 141. 11 Max Lowenthal, The Federal Bureau of Investigation (Westport, Conn.: Greenwood Press, 1971 [1950]), 414; Claire Bond Potter, War On Crime: Bandits, G-Men, and the Politics of Mass Culture (New Brunswick, NJ: Rutgers University Press, 1998), 28.
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The Twelve Point Program
The violent deaths of a federal agent and the prisoner he was escorting in
Kansas City, along with the much publicized kidnappings of two prominent
Midwestern business men combined somewhat unexpectedly in the summer and fall of 1933 to propel the Department of Justice in a direction for which it was ill
prepared. In the years between 1925 and 1932, the Department had gradually
reduced the size of its investigative division and closed a number of the Bureau
of Investigation’s district offices, decisions that had not only helped to centralize
and strengthen the Bureau’s control over its own activities, but also, as part of an effort to refocus its jurisdictional responsibilities, to remove it from the public eye.12 During the Hoover presidency, the Bureau, emerging from a period of reform and reorganization following its much criticized post-war anti-radical campaign, had, with encouragement from such organizations as the International
Association of Chiefs of Police (IACP), devoted an increasingly larger proportion of its limited resources to the establishment of a national fingerprint depository and the development of a crime laboratory that reflected the country’s growing fascination with the new police technologies then gaining recognition as powerful tools in the suppression of crime. Closely attuned to the newest trends that were sweeping through the nation’s most advanced police organizations, the Bureau had organized a formal training program for its agents and increasingly limited its recruitment to men with primarily legal or accounting backgrounds, both areas that reflected the Bureau’s emphasis upon the investigation of such offenses as
12 Richard Gid Powers, Secrecy and Power: The Life of J. Edgar Hoover (New York: Free Press; London: Collier MacMillan, 1987), 184.
457
bankruptcy fraud and interstate auto theft. The death of one of its own, however,
and the pressures placed upon its organizational structure by its expected enforcement of the new federal kidnapping statute challenged the Bureau in ways that raised serious questions concerning the value and efficiency of federal enforcement.13
The swiftness with which these events unfolded during the latter part of
1934 left Attorney General Cummings with decidedly mixed feelings regarding
the matter. Mindful of the problems that had plagued his predecessors, he was,
therefore, understandably reluctant to commit federal resources to a task over
which the government’s jurisdictional authority remained largely unresolved and
the political ramifications of which could be disastrous for other and what he
considered more vital joint state and federal interests. On the other hand, the
prestige of the federal government, the Department’s standing as the
embodiment of the government’s authority to both enforce the law and ensure
order, had been placed at risk by the highly publicized depredations of a few
gangsters against whom an entire public had recoiled in anger and frustration.
No one better than the Attorney General appreciated the political urgency of
doing something, but the relative mildness of Cummings’ reaction contrast
sharply with the increasingly brazen displays of criminal violence against which a
crime-weary public demanded action. On July 30, 1933, Cummings, struggling
to assert some degree of control over a clearly worsening situation, introduced a
new re-organizational plan for his Department – consolidating its various
13 Patrick V. Murphy, “John Edgar Hoover: The Federal Influence In American Policing,” Edited by Philip J. Stead, Pioneers In Policing (Montclair, NJ: Patterson Smith, 1977), 262-263.
458
investigative resources – and announced the appointment of J. Edgar Hoover as
the director of the Department’s investigative division, which, as he assured his
audience at the time, would begin immediately to devote its energies to the
apprehension of kidnappers, racketeers, and other criminals. Hoover’s selection
as the Department’s principal enforcement chief released a firestorm of criticism that resurrected old fears regarding the director’s past and highly controversial role as the Bureau’s post-war intelligence chief and raised new concerns regarding his inexperience in the field of police work. If the Attorney General, by committing his own Departmental resources to the struggle, had hoped to assuage the public’s anxiety over the growing incidence of crime, he had failed miserably to do so, a fact driven home by the flood of proposals - ranging from the outright suspension of civil liberties to the deployment of military units to
assist local officials in combating the upsurge in crime - that immediately followed
his announcement.14 The most radical solution to the crime problem, the expansion of federal criminal law jurisdiction, held little appeal among the administration’s principal figures and policy-makers for whom the country’s local political frameworks still constituted the bedrock of the nation’s political system and the essence of their concept of self-government. Cummings himself displayed little tolerance, at least within his own Department, for any suggestion of a greater enforcement role for the federal government. When informed that the chief of his criminal division had appeared before a convention of the
American Bar Association in Chicago and had personally encouraged
14 Gentry, Curt Gentry, J. Edgar Hoover: The Man and His Secrets (New York: W.W. Norton and Company, 1991), 158-159.
459
consideration of a plan, initially floated in connection with the furor over the
Lindbergh kidnapping, to place all local, municipal, and state enforcement officials under the control of the Attorney General, Cummings, without consulting the President, demanded his resignation.15 From all outward appearances,
neither the Department, nor the Roosevelt administration seemed able to offer
the degree of reassurance people were hoping to receive, that in the face of a
great depression, the nation’s governing institutions would be able “to enforce the
rules that held it together.”16
Into this vacuum of sorts stepped a number of concerned organizations, not the least of which was Congress. Increasingly moved by the plight of local
officials responsible for the protection of their constituents and determined to
demonstrate, within the constitutional limitations imposed upon it, its concern,
Congress authorized a relatively wide-ranging investigation of the nation’s crime
problem, the most notable being Senator Royal Copeland’s study of
racketeering. A conservative Democrat from New York and, therefore, someone
to whom the administration, given Copeland’s criticism of the President’s
programs and reforms, offered little, if any, support.17 Copeland’s subcommittee
soon became mired in the complex and corruption-ridden structures that typified
relations among city officials, organized crime, and labor unions in many of the country’s urban areas. Copeland’s efforts, however, attracted, with some help
15 Diary, January 3, 1932 – April 7, 1933, Homer S. Cummings Papers. University of Virginia, Charlottesville, VA., 69-71, 83. 16 Richard Gid Powers, “The Attorney General and the G-Man: Hollywood’s Role in Hoover’s Rise to Power,” Southwest Review 62, no. 4 (Autumn 1977): 329-346, 330. 17 James T. Patterson, Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition In Congress, 1933-1939 (Lexington: University of Kentucky Press, 1967), 43.
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from the Senator himself, enough attention to convert it into something of a
congressional clearinghouse for a growing number of anti-crime proposals, both new and old, for which the members of both houses of Congress sought consideration. Though Copeland’s position relative to drug use – as a physician and former New York City health commissioner, he supported the treatment of drug addiction over its punishment – found little resonance among the voters in his state or in Congress, the Senator’s reputation in connection with law and order issues had been greatly enlarged by his strong advocacy of strict gun control measures, which included federal licensing of all firearms, and the consolidation of all federal enforcement agencies within a single division in the
Justice Department, a recommendation vigorously opposed by practically every member of the President’s cabinet. In November, 1933, Copeland’s Committee to Investigate Crime and Racketeering was joined by the judiciary committees of
both houses in giving more serious attention to some three dozen or more bills
that would strengthen federal criminal procedure, address problems in the
extradition of interstate fugitives and in the application of the federal kidnapping
act, and provide federal enforcement agents with the power and weaponry
necessary to effect arrests.18
Copeland’s interest in expanding the federal government’s crime-fighting
role, however, was not widely shared among his fellow congressmen who preferred an alternate approach, one that left this task to those public entities better suited to address the nation’s apprehensions over crime. In 1934,
18 Potter, Raymond Joseph Potter, “Royal Samuel Copeland, 1868-1938: A Physician In Politics” (Dissertation, Ph.D.: Western Reserve University, 1967), 470-471; Patterson, Congressional Conservatism and the New Deal, 47.
461
Congress enacted legislation that permitted the states to execute formal
agreements or compacts between or among them regarding any matter involving
the enforcement of their criminal statutes.19 Between 1900 and 1932, increased interest in the adoption of uniform state legislation as a “structural and procedural
problem-solving mechanism” had helped to popularize the notion of interstate compacts as a way to address issues of mutual interest among the states and to eliminate the jurisdictional barriers that prevented their cooperation on an on- going basis. A progressive era innovation, such compacts ordinarily could not be created without advanced congressional approval, but such was the fear of crime in 1934 that Congress felt compelled to remove the requirement of consent for any agreement bearing upon the prevention of crime and the enforcement of the states’ “respective criminal laws and policies.” Congress also authorized the states to establish agencies that could facilitate the production of such inter-state agreements and that could oversee their management or administration.20 The passage of the act relating to interstate compacts raised expectations among many of the nation’s police associations whose position relative to interagency cooperation they had long struggled to advance, though without any meaningful consequence. Congress’s interest in the subject, however, not only spurred a renewal of interest in the possibilities that such arrangements might offer the nation’s beleaguered police organizations, but also highlighted the serious
19 48 Stat. L. 909, 18 U.S.C.A., section 420; Justin Miller, “Crime Control As An Interstate Problem,” 22 Washington University Law Quarterly 382 (Spring 1937), 386. 20William Graebner, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” The Journal of American History 64, no. 2 (September 1977), 331-357, 332; Millspaugh, Crime Control By the National Government, 47-48.
462 disparities - structural, procedural, and jurisdictional - that characterized the organizational landscape in which they were operating.
Congress’ growing interest in crime signaled a shift in that body’s thinking regarding the government’s posture in relation to the principal crime issues of the day. Among the first to sense this change in attitude was the International
Association of Chiefs of Police. The IACP stood alone among the nation’s police associations in at least one important respect: when it came to advancing its agenda, none enjoyed greater influence within the Department of Justice than did its board of governors. Since 1925, the relationship between the IACP and the
Department’s Bureau of Investigation had improved sufficiently so as to have encouraged a growing number of collaborative efforts, which included the publication and distribution of a national journal for police officers, the promotion of forensic investigative techniques, and the consolidation of fingerprint and crime records under the direct supervision of the Justice Department (this last, given the privacy and control issues to which it inevitably gave rise, being an especially significant achievement in its own right). The Justice Department’s interest in the IACP’s agenda reflected a rising interest in the Justice Department in finding ways to inspire the country’s police agencies to cooperate with one another in resolving the communication, structural, and jurisdictional problems separating them operationally. The delegation that visited with the Attorney
General and his principal aides on October 26, 1933, was perhaps one of the most distinguished ever assembled by the IACP and included police chiefs and administrators from some of the nation’s largest cities. It quickly became clear
463
that the purpose of the delegation’s visit was to plead for direct federal
intervention, but for assistance in establishing those mechanisms by which the
country’s police agencies, regardless of jurisdictional considerations, could
benefit from the newest technologies in the field, from improved training
programs, and from more assured cooperation in the prevention of interstate
flight and the transportation of illegal weapons. The delegation’s requests
reaffirmed the federal government’s supplementary role in law enforcement and
shrewdly played upon the administration’s commitment to national recovery.21
Altogether, the IACP’s plan embraced a number of proposals, including the creation of nationwide police training standards, the establishment of a national identification system accessible to all subscribing police agencies, the establishment of state councils that would coordinate local efforts in the improvement of the administration of justice and facilitate cooperation between state and local organizations, and the adoption of more standardized rules of criminal procedure and evidence.22
The IACP’s proposals provided a much needed boost to preparations then
underway for a national conference on crime. No evidence has been found to
suggest who may have been responsible for originating the idea, but it is clear
that the conference, intended initially to demonstrate the government’s interest in
all matters relating to the issue of crime and punishment, was rapidly becoming
the focal point of its anti-crime policy. The failure of national prohibition had left a
21Justice Department Press Releases, October 19, 1933, and October 26, 1933, “Crime Suppression”, June, 1933 to December, 1935, Homer S. Cummings Papers, Box 182. 22 “Steps Toward National Co-Ordination of Police Agencies,” Public Management 15, no. 11 (November, 1933), 348-349.
464 peculiar legacy for federal policing, one that emphasized the very different purposes and other distinctions that had long set federal enforcement activity apart from that of the states and their local entities. But the depression and the public’s growing obsession with crime had again, in response to a growing demand for federal action, raised questions concerning the “proper” scope of federal criminal law. The question most frequently asked was whether federal authority could be expanded without violating the limitations imposed by the
Constitution and with some assurance that it would remain within the bounds defined by the government’s limited resources and specialized mode of policing?
For the Attorney General, the nation’s crime problem was not unlike those other crises with which the administration was then confronted. If, as he felt, the public lacked confidence in the ability of its local institutions to contain the criminal element in its midst and to deter their violent proclivities, then no amount of effort on the part of the federal government would ever be sufficient to restore their confidence unless it was directed at the true source of the problem, the internal weaknesses of local police agencies and their operational isolation from one another. Increasingly under pressure to provide some indication as to what the government proposed to do to alleviate this situation, the Attorney General could, at first, offer little to satisfy those who were demanding immediate action, but it wasn’t until after he had been approached by the IACP, that he began to see the conference as a forum within which to address the root causes of the nation’s continuing struggle with crime. What was clearly lacking in the nation’s “war” on crime, Cummings became fond of reminding the press, was effective leadership
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and a coordinated program of action, deficiencies which his Department
proposed to correct by means of a concerted effort that would rely upon the
participation of all levels of government in the achievement of a common goal.
The “whole movement against crime in any national sense,” he would later
explain, “had been sporadic, intermittent, disjointed, and totally lacking in
correlation.” Into this troubled environment, he was determined to bring the
national scope and prestige of the federal government, providing, at the grass-
roots level, the inspiration, encouragement, and, most importantly, the
coordination that would be necessary to mount a united front against the “forces
of crime.”23
Between December of 1933 and April of 1934, however, the whole tenor of the Department’s approach to the problems of local law enforcement changed dramatically, moving suddenly and quite unexpectedly in a new direction and eclipsing, if only momentarily, the more collaborative approach envisioned by the
Attorney General. The Bureau of Investigation’s decision to exclude the local police from an active role in its investigation of the death of its agent and other law enforcement officers in Kansas City effectively deprived it of the manpower and local sources of intelligence that would ultimately prove critical in the identification and apprehension of those thought responsible. The realization that new tactics would have to be adopted and other organizational adjustments made to accommodate the costly and time-consuming nature of what was for the
23 “Current Notes,” Journal of American Institute of Criminal Law and Criminology 24 (May-June, 1933 – March-April, 1934), 619; Homer S. Cummings, “Lessons of the Crime Conference,” Proceedings of the Attorney General’s Conference On Crime (Washington, D.C.: Government Printing Office, 1935), 457.
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Bureau a relatively new kind of enforcement activity resulted in significant
changes, in terms of its recruitment policy and orientation, that would transform
the Bureau from a relatively unknown bureaucracy preoccupied with the
interstate movement of stolen automobiles and bankruptcy fraud to a more
recognizably police-like organization. That process would be expedited by the
Bureau’s growing concentration upon cases involving bands of armed criminals
who crossed state lines, in stolen vehicles, a federal offense, to avoid capture and its growing reliance upon the use of force to intimidate its quarry.24 Even as
the Bureau’s highly publicized chases were catapulting it into national
prominence, its use of “hired guns,” primarily local law enforcement officers specially recruited for their experience and knowledge of the region, and highly aggressive tactics were raising concerns anew regarding the tendency of federal
agents to resort to force in asserting their authority. The death of an innocent
bystander during a Bureau mounted raid on an outlaw hideout in Wisconsin, in
preparation for which the federal agents had turned down local offers of
assistance and which virtually overshadowed the loss that same day of two of the
agents, provoked an outpouring of criticism that reached Congress and
eventually drew the attention of a worried Attorney General.25 Of particular concern to the Department of Justice were those of its critics who questioned whether the government’s new and largely improvised campaign against crime
24 Jeffrey S. King, The Life and Death of Pretty Boy Floyd (Kent, OH: Kent State University Press, 1998), 145. 25Ibid., 204-206; Howard McClellan, “Shoot To Kill? A Note On the G-Men’s Methods,” Harpers Magazine 172 (January, 1936), 236-244, 237, 242-244; Bryan Burrough, Public Enemies: America’s Greatest Crime Wave and the Birth of the FBI, 1933-34 (New York: Penguin Books, 2004), 292-323.
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actually constituted an appropriate use of federal power. Among those who had
chastised the Department for failing to acknowledge that the enforcement of the
law was primarily a local responsibility was O. W. Wilson, the much respected
chief of the Wichita, Kansas, police department and a well recognized innovator
in police administration. Wilson had always maintained that effective crime
control could be more readily achieved if the states were allowed to establish
minimum standards for police recruits, to coordinate their training, and to
maintain the kinds of records and statistics that could improve police services
and performance.26 The Bureau’s efforts to improve its performance in the field
and its increased reliance upon local law enforcement for assistance in
conducting its investigations did little to mollify such critics or to dispel their fears regarding the federal government’s intervention in matters that were considered more appropriately the concern of local officials.
The criticism of the Bureau’s conduct was, in many respects, a natural
outgrowth of the Justice Department’s increased powers and responsibilities.
Cummings had originally heralded the Bureau’s crusade against banditry as the
beginning of a new era in crime-fighting and saw in it an opportunity not only to
reaffirm the “vitality and strength” of the law, but to transform law enforcement
itself into a “symbol of national unity” and determination.27 The public’s reaction
to the Bureau’s misadventures, however, and Congressional concern over the
Bureau’s commitment of a greatly disproportionate amount of its limited
26 William J. Bopp, “O. W.:” O. W. Wilson and the Search For a Police Profession (Port Washington, NY: Kennikat Press, 1977), 56. 27 Richard Gid Powers, “The Attorney General and the G-Men,” Southwest Review 62, no. 4 (Autumn 1977), 324-330, 340.
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resources to investigations of crimes that involved, from a federal perspective,
nothing more serious than violations of the interstate auto theft act soon forced
the Attorney General to mount a very public defense of the Bureau’s work and to
devote increasingly more of his time responding to the questions concerning the
Bureau’s competence.28 This experience encouraged Cummings to embark
upon a public relations campaign that was unprecedented in the Department’s
history. Not only did the Department freely avail itself of the administration’s considerable influence over the nation’s news media, but it also became engaged in carefully constructed effort to influence the manner in which the media and the nation’s film industry portrayed law enforcement generally and the federal crime program in particular.29 Combining its skill in public relations with
examples of the Bureau’s exploits and accomplishments, the Department,
convinced that a more favorable image would “translate” into wider acceptance of and, ultimately, greater public support for the Bureau’s increasingly activist role in
combating crime, set out to more firmly establish itself as the leading force in the
organization of the nation’s anti-crime movement.30 That objective, Cummings
knew, could never be satisfied by concentrating the Department’s resources
upon the eradication of a few notorious outlaws, but would have to be expanded
to embrace a host of issues with which the nation’s local governments and states
28 Melvyn Purvis, American Agent (Garden City, NY: Doubleday, Doran & Company, Inc., 1936), 289; Burrough, Public Enemies, 324-325. 29 Gary Dean Best, The Critical Press and the New Deal: The Press Versus Presidential Power, 1933-38 (Westport, CN: Praeger, 1993), 24-25; David C. Gibson, “The Making of the Hoover Myth: A Critical Analysis of FBI Public Relations,” Public Relations Quarterly 33, no. 3 (Fall 1988), 7-15, 7-9. 30 Kenneth O'Reilly, “A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security,” The Journal of American History 69, no. 3 (December 1982), 638-658, 641- 642.
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were grappling. Toward this end, he hoped both to clarify the government’s role
through an aggressive legislative program and to promote the advantages that
could be derived, on the one hand, from the adoption of more modern forms of
organization and communication, improved training and forensic techniques, and,
on the other, increased coordination among the nation’s law enforcement
agencies.
War’s End
In January, 1934, a series of bills designed to bridge what were seen as
gaps in existing federal law and intended to improve the administration of federal
criminal justice were introduced in both houses of Congress by Senator Henry
Ashurst of Arizona, chairman of the Senate Judiciary Committee, and
Representative Andrew Somers of New York. Though not widely known at the
time, the bills were actually the outcome of a protracted discussion between the
Justice Department and Senator Copeland whose subcommittee had become
increasingly influential in guiding congressional deliberations relative to the
nation’s crime issues.31 The bills were classified in three groups, the first
providing for the regulation of the manufacture and transportation of automatic weapons and certain kinds of firearms; the second, amending federal court procedure to facilitate the processing and prosecution of federal offenses
(creating a notice requirement in connection with the use of an alibi defense, limiting the use of the statute of limitations, removing the marital privilege, and expediting habeas corpus proceedings); and the third, establishing certain new
31 Harry S. Toy and Edmund E. Shepherd, “The Problem of Fugitive Felons and Witnesses,” Law and Contemporary Problems 1, no. 4 (October 1934), 415-424, 415; Letter from the Attorney General to the President, March 12, 1934, Office File, Crime, 1934, FDR Library, Box 117.
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substantive offenses that included provisions for the arming and protection of
federal agents engaged in the performance of their duties.32 The care with
which the Department crafted these proposals so as to gain the acceptance of their respective sponsors is evident from the correspondence and memoranda that passed between them and suggests that the Administration’s regard for the possible constitutional and political implications that might result from their introduction and passage were of great concern to all. “In presenting my comments upon the bills submitted to you,” the Attorney General had written, “I want to reiterate my firm belief that generally the suppression of crime is the obligation of the various states and local political subdivisions.” “I subscribe,” he continued, “to the principle that it is distinctly not the duty of the Federal
Government . . . to preserve peace and order in the various communities of our
nation.” In the weeks that followed, these assurances were transmitted to
practically all members of the Congress along with the Attorney General’s
disavowal of any interest in reviving the concept of concurrent jurisdiction as an
appropriate framework for joint federal and state law enforcement: “such
concurrent jurisdiction,” Cummings was convinced, “more often than not leads
one law enforcement body to refer such matters of enforcement to the other, with
the result that the work is not efficiently performed by either.” 33 The lessons of
prohibition enforcement, it seems, had been well learned.
32 Memorandum, “Legislative Program of the Department of Justice,” March, 1934, FDR Library, Office File, Crime, 1934, Box 117. 33 Memorandum From the Attorney General (undated), The Howe Papers, FDR Library, Secretary File, Commerce Department to Crime, 1933-36, Box 72.
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The Department’s proposals, however, were not accepted by all congressmen and among those who raised no objection, not necessarily without reservation. The crime bills, particularly those proposing to strengthen and enlarge the federal kidnapping and motor vehicle theft acts and those providing for entirely new offenses in relation to bank robbery, racketeering, and assaults upon federal officers, were widely viewed with some misgiving. As the
Department had foreseen, the bills, which proposed to extend federal criminal jurisdiction beyond its then customary limits, raised questions relating to the future of inter-governmental relations and the impact such new responsibilities would have upon the traditional configuration and purpose of federal policing.
Hatton Sumners, chairman of the House Judiciary Committee, was especially concerned that the government’s assumption of a more active role in crime suppression would weaken the states’ authority in such matters and remove the principal responsibility for crime control away from the localities to which it legitimately and historically belonged. Even within the administration, there were concerns voiced regarding the potentially adverse consequences of widening the scope of federal policing. Raymond Moley, whose increasingly skeptical assessment of some of the New Deal programs to which he had been assigned and whose growing rift with the President’s ailing secretary Louis Howe had made his departure inevitable, had been asked, as one of his final duties, to provide the President with a study of the government’s enforcement responsibilities. Moley’s analysis of the crime bills, which he would later incorporate in his report to the President, warned of the dangers any
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enlargement of the “crime repressive functions” of the federal government might
have upon local crime initiatives and capabilities.34
In March of 1934, facing the prospect of further delay in Congress’
consideration of his crime proposals, Cummings was twice compelled to make a
special appearance before the Senate’s Judiciary Committee to plead for
enactment of what, by then, had become publicly identified as one of the central
features of the Administration’s crime program. Explaining that it had been the
Justice Department’s intent to eliminate the gap that had long stood between the
jurisdictional reach of both the federal and the state governments, what he would
describe as a “twilight zone” within which criminals had found relative safety from
capture and prosecution, the Attorney General pointedly reminded the committee
of the vital role that the proposed legislation, which he regarded as little more
than “supplementary” in nature, was expected to play in the nation’s broad-based
campaign against crime. Assuring his audience that “no constitutional changes
[were being] sought,” Cummings noted that in the event that “any law be found
impractical of enforcement,” Congress would have both the authority and the
opportunity to “discard” it without consequence to the nation’s crime suppression
effort or the government’s ability to perform its supportive role.35 On May 18,
1934, President Roosevelt, being careful to direct attention to the
34 Alfred B. Rollins, Jr., Roosevelt and Howe (New York: Alfred A. Knopf, 1962), 390; William Seagle, “The American National Police: The Dangers of Federal Crime Control,” Harpers Magazine 169 (October, 1934), 751-756, 754; Raymond Moley, “The First of Three Sections of a Report on the Federal Enforcement of Criminal Law,” Crime Suppression, June, 1933-December, 1935. Homer S. Cummings Papers, Box 182. 35 Press Release, Department of Justice, February 19, 1934. Homer S. Cummings Papers. “Crime Suppression, January 1933 – December, 1935,” Box 191; Swisher, Ed., Selected Papers of Homer Cummings, 47.
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“complementary” purpose of the crime bills that had been enacted only a few
days before, proceeded to sign them into law.36
Having obtained the legislation he had long sought, Cummings now found
himself in the unenviable position of having to make good on his promise. For
months, he had been engaged in promoting a cooperative venture between the
states and the federal government that was intended to bring the country’s police
forces together for a coordinated attack upon crime and to unite a frustrated and
skeptical populace in support of this effort. His commitment to what he described
as the “doctrine of cooperation” was unwavering, and few doubted his sincerity
when he announced and did thereafter maintain that he had purposely
“developed within the Department of Justice a structure predicated upon” an active program of cooperation with state and local agencies similarly dedicated to
what was clearly a mutual and vital objective.37 Modern growth and technological progress, he believed, had not only resulted in an increase in the nation’s crime rate, but had also given it “an interstate character” against which no locality, no state, and certainly not the federal government without jeopardizing the fundamental character of its political structure could alone resolve.38 Caught up
in the drama and public excitement inspired by the Bureau of Investigation’s
exploits in the field, he had found himself momentarily distracted from what was
to become the centerpiece of his program, a conference that would provide the
36 FDR Speech Files, Statement On the Signing of the Crime Bills, May 4, 1934 – August 3, 1934. FDR Library, Box 702. 37 Homer S. Cummings, Progress Toward A Modern Administration of Criminal Justice In the United States (Washington, D.C.: Government Printing Office, 1938). 38 Homer S. Cummings, We Can Prevent Crime: An American Program (New York: McFadden Publications, 1937), 15.
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impetus for interstate cooperation and encourage a level of professional
development that could appeal to a far wider audience than either he or his
Department could effectively reach.
What Cummings had failed to anticipate was the persistence with which
those concerns generated by the government’s crime bills would remain
significant political issues. Moley’s report, released for public consumption only a
week after the President’s signing, did nothing to placate the fears of those for
whom the extension of federal power was automatically a cause for concern. His
well-substantiated study raised serious questions regarding any benefit to be
derived from frequent and direct federal involvement in the investigation of such
offenses as kidnapping or racketeering and suggested that the commission of
either offense, given the states’ experience with each, was, for the most part,
unlikely to invoke federal jurisdiction.39 In February, 1936, when the Bureau’s director was questioned on the subject, he was forced to admit that in the nearly
four years since the passage of the Lindbergh Act, his agency’s assistance had
been required in no more than sixty-two of the several hundreds of kidnappings
that had been reported during that period.40 To the Attorney General’s surprise, the Department’s success in securing passage of its crime program had encouraged a flood of other proposals from interested parties, many of which, if they had received the Department’s consideration, would have seriously
jeopardized the Department’s relations with Congress as they would have
39 Horace L. Bomar, Jr., “The Lindbergh Law,” Law and Contemporary Problems 1, no. 4 (October 1934), 435-444, 442. 40 Department of Justice Appropriations Bill for 1937, Hearing, Subcommittee of the House Committee On Appropriations, 74th Cong., 2nd Sess. (Washington, D.C.: Government Printing Office, 1936), 89.
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resulted in what for the era would have been a clearly unacceptable expansion of
federal jurisdiction and enforcement responsibility. Compounding this problem
were the increasingly frequent reports regarding the Bureau’s efforts to run some of the decades most notorious bandits to ground. The sensationalism with which the media greeted every report concerning the Bureau’s activities, while inviting public interest and respect, threatened to distort the government’s actual role in its much touted campaign against crime and dangerously detracted from its efforts to address those subjects, inadequate training, insufficient resources, and a lack of coordination, that were of particular concern to the nation’s police, the very agencies upon which the actual responsibility for the nation’s war on crime lay. The resentment that grew out of the Department’s hyperactive assault upon banditry and other forms of outlawry would soon be encapsulated in an article published by Harper’s Magazine, a widely circulated periodical of some influence, and raise concerns among the Justice Department’s upper echelons over the possible adverse effects of “too much national action.”41
Unable to ignore the clearly detrimental impact these developments were having upon its planning and policies, the Department, at the direction of the
Attorney General, rushed to finalize its preparations for a conference that had
become the embodiment of the government’s cooperative approach to crime
control. For the Department, the conference had come to represent its best hope
for delineating the roles of the parties concerned and for inspiring the kinds of exchanges and activities that could result in the level of cooperation the
41Rollins, Roosevelt and Howe, 413; Howard McClellan, “Shoot To Kill? A Note On the G-Men’s Methods,” Harpers Magazine 172 (January, 1936), 236-244
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government was especially keen to promote. Shortly before the enactment of the
Department’s crime bills, both the Criminal Division and the Bureau of
Investigation had submitted estimates regarding the likely expense and other
organizational adjustments that would be necessary to discharge the new
responsibilities that would result from passage of the proposals then under
congressional consideration. The results had been startling, calling for increases
in staffing and expenditures that far exceeded what appropriations the
Department could expect. The Bureau also noted that it lacked the necessary
equipment, radios and automobiles, to perform the tasks that would be expected
of its agents following passage of the crime bills and that it had already cut back
on the numbers of general investigations it might otherwise have performed in
order to adequately staff and sustain the more intensive manhunts to which it had been committed.42 In August, the Department was forced to accept that it was ill
prepared to enforce the provisions of the newly passed National Firearms Act, a
concession that resulted in the responsibility for its enforcement being transferred
to the Department of the Treasury where the situation was hardly better. Despite
its best efforts to coordinate the activities of its various enforcement branches
and to make more effective use of its limited manpower, Treasury had been
overwhelmed by the task of absorbing the great many duties to which it had been
42 J. Edgar Hoover, Memorandum for the Attorney General, April 30, 1934, Homer S. Cummings Papers. “FBI, January 1933 – December, 1935,” Box 191.
477 assigned during the first years of the New Deal and soon found itself struggling to attend to even its most routine enforcement functions.43
As the conference grew in importance among the Department’s policy- makers, the early planning, which had called for private funding and sponsorship
– the National Crime Commission had already been approached – was discarded in favor of new plans that underscored its significance as a symbol of the growing unity among the nation’s different levels of government on such matters as crime suppression. To oversee the preparations then underway and to ensure that the conference would receive the attention it deserved, Cummings had secured the services of Justin Miller, one of the nation’s most respected criminal law specialists and the dean of Duke University’s College of Law. Miller, with the assistance of a wide circle of professional acquaintances, academics, and policy specialists, along with the support of the President and the governors of several states, succeeded in presenting the conference as one of the centerpieces of the nation’s campaign against crime. Cummings could not have found a more articulate or dedicated ally in the Attorney General’s continuing struggle to define and defend his perception of the government’s true role in the war on crime. Writing on behalf of his employer, Miller would repeatedly expound upon the conference’s central theme.” “What is sought,” he noted, “is neither a Federal program alone, nor a State program alone, but methods of effective cooperation in the sphere of crime prevention and criminal law enforcement among the Federal, State, and local Governments, as well as the
43 John Morton Blum, From the Morgenthau Diaries: Years of Crisis, 1928-1938 (Boston: Houghton Mifflin Company, 1959), 95-96; Walter S. Bowen and Harry E. Neal, The United States Secret Service (Philadelphia: Chilton Company, 1960), 167-168.
478 active assistance of all agencies, official and otherwise, which can participate in a sustained national movement to deal with the crime menace.”44
In the Fall of 1934, as the Department’s war on banditry was approaching its climax, Cummings had found himself increasingly conflicted by his dual role as the federal government’s chief enforcer and as one of the New Deal’s most visible “crisis managers.” As a leader of a growing and popular “grassroots” movement that embraced all levels of government and to which he clearly owed his prominence, Cummings had taken upon himself an extraordinary responsibility for the welfare of the nation’s federalist system. As a result, he had grown increasingly troubled by the potentially adverse consequences of policies that were at the very root of those especially aggressive practices with which the
Department’s investigative arm had become more widely identified and which had invariably led to the extension of federal regulatory and policing powers into areas that the federal government had rarely traversed. Having once relished almost any opportunity that he could find to endorse this particular approach to crime control, the Attorney General now began to have second thoughts regarding the matter, increasingly troubled by policies that could not bring themselves to acknowledge the profoundly complex, continuously evolving, and persistent nature of crime. The supreme irony of the Department’s growing relations with the states and their local governments was that the closer both levels of government had become, the more, it seemed, had the Department’s
44 Letter from Justin Miller to Louis Howe, September 19, 1933, Office File, Crime, 1933, FDR Library, Box 117; Press Release, Department of Justice, October 8, 1934, Office File, Crime, 1934, FDR Library, Box 117.
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orientation toward crime reverted to its original conceptualization of its role in the suppression of crime.
Only a month before the country’s first truly national conference on crime
was to have been convened in the nation’s capital, Cummings appeared before a
nationwide radio audience to voice his concerns regarding the direction the
government’s war on crime had begun to take. “The movement that has been
projected under federal auspices,” he cautioned, “is often given the somewhat misleading designation of ‘a war’ or ‘a crusade’ or ‘a drive.’ These terms are apt
to suggest some sort of high-pressure effort calculated to stir temporary
enthusiasm. Such a conception, as applied to the Federal Government’s
determination to deal with the menace of lawlessness, is altogether erroneous.
The problem of crime is one with which, I feel sure, my successors in office will
be struggling for many years to come, for crime is as old as history and human nature is not given to sudden end [or] permanent reformation.”45 For Cummings
and many, though not all, of his subordinates in the Justice Department, the
conference was intended to signal a shift away from the government’s earlier war
on crime perspective, in which its concerns regarding crime had generally
focused upon the “most immediate and visible challenges” to law and order to a
greater emphasis upon crime prevention and the improvement of all aspects of
criminal justice administration, a veritable “course correction” in federal crime
policy for which the President himself would soon express his wholehearted
45 Press Release, Department of Justice, December 10, 1934, Speech Files, October 19, 1934 – January 17, 1935, FDR Library, Box 20.
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approval.46 Unwilling to risk losing the momentum that had flowed out of the conference, Cummings moved quickly to establish the machinery that would be necessary to exploit the inroads the Department had made among the conferees and the organizations they represented. In January of 1935, he announced the formation of an advisory committee under the direction of Justin Miller that would
include the Department’s bureau and division chiefs as well as the heads of such
organizations as the American Bar Association, the American Law Institute, and
the IACP, all of whom had advocated on behalf of greater and more consistent
federal support for local anti-crime initiatives.47
By 1935, the Bureau of Investigation's era of highly publicized pursuits of
armed fugitives was rapidly coming to an end. Concerns regarding the extension
of federal criminal jurisdiction, however, persisted. Efforts on the part of the
Justice Department and its newly renamed Federal Bureau of Investigation to assuage fears concerning the government's intended exercise of what were widely viewed as police powers traditionally reserved to the states and local governments took on a growing sense of urgency and would ultimately consume the energies of the Attorney General's advisory committee and particularly those of its chairman. Taking every opportunity given him, Miller and his staff attempted to redirect attention to what they saw as the larger task that lay ahead, that of developing a broad cooperative approach to combating crime, of building
46 Nathan Douthit, “Police Professionalism and the War Against Crime In the United States, 1920s-30s,” Edited by George L. Mosse, Police Forces In History (Beverly Hills, CA: Sage Publications, Inc., 1975), 330-331. 47 Press Release, Department of Justice, Homer S. Cummings Papers. “Crime Suppression, June, 1933 – December, 1935,” Box 182; “Agenda. Attorney General’s Advisory Committee, February 11, 1935, Homer S. Cummings Papers. “Crime Suppression, June, 1933 – December, 1935,” Box 182.
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"throughout the length and breadth of the country a new attitude upon the part of the people toward the question of crime, its prevention and repression."48 To
achieve these goals, the Department, guiding by the conference’s findings, had
proposed taking certain steps, among them, the establishment, under the
auspices of the FBI, of a national training program for local police officers.
Additional programs providing similar educational opportunities for state
correctional personnel through the Federal Bureau of Prisons and for prosecutors
under a" proposed Bureau of Crime Prevention" had been authorized by
Congress, but not funded. Congress’ failure to provide the necessary funding for the Department’s coordinative program and the Administration’s reluctance to expend more of its political capital and financial resources toward that end would make the development of closer relations with local police forces, the keystone of the Department’s plan, difficult and leave the Attorney General increasingly vulnerable to a new wave of criticism, made sharper by his involvement in the controversy surrounding the President's plan to reshape the Supreme Court,
regarding the government’s use of its new powers.
Miller’s response to the growing restiveness he detected among local and
state officials tended to stress the more affirmative version of states rights that
had been so much a part of the Roosevelt Administration’s early discourse on the
subject. Federal power, he assured them, would be “invoked” only on those
occasions where the states themselves required federal assistance, primarily in
the form of its extended jurisdictional reach, to protect their own citizenry and to
48 Justin Miller, “The Attorney General’s Program for Crime Control, An Address Before the American Bar Association, July 17, 1935,” FDR Library, “Crime, 1935-36,” Box 138.
482
ensure the efficacy of their own criminal laws. The Attorney General, he insisted,
fully recognized that the “larger portion of the problem of crime” – a “staggering
percentage of offenses, perhaps even 90 percent of the total” - fell within the
jurisdiction of the states and that the purpose of the recently enacted crime bills
had not been to usurp this authority, but to improve the federal government’s
ability, in the face of significant changes in crime, to meet what had long been its
supportive or complimentary responsibilities in the field of law enforcement.
Those statutes, which had made bank robbery (essentially, the theft of “federal
property”), the interstate transportation of stolen goods (akin to interstate auto
theft or transporting “fight films” or lottery tickets across state lines), and assaults
upon federal enforcement officials (where precedent could be found in federal
laws making it a crime to obstruct process or to assault a mail carrier), for
example, all bore a close resemblance to federal offenses that had been “created
in previous decades” and represented a “logical” and necessary development in
meeting what were clearly new and threatening conditions.49 The urgency with
which the Attorney General and the chairman of his advisory committee acted to counteract these suspicions regarding the government’s expanded jurisdiction, however, was not merely the result of increased concern respecting the significance of its new powers, but of developments within the government that clearly impacted upon its leadership role in the country’s adjustment to its crime
49 Miller, “The Attorney General’s Program for Crime Control,” 9-11; James T. Patterson, The New Deal and the States: Federalism In Transition (Princeton: Princeton University Press, 1969), 195-196; State of New York, Proceedings of the Governor’s Conference On Crime, The Criminal, and Society, September 30 to October 3, 1935 (Albany, NY: [np], 1936), 134-135, 141.
483 problem and the improvement of those local systems of criminal justice upon which this burden squarely and unalterably lay.
Amidst the tensions that had surfaced even before Cummings had assumed office, relations between the Department’s principal bureaus, the
Bureau of Prisons and the Bureau of Investigation, had continued to deteriorate.
In the face of their profound differences in orientation and approach to questions concerning the treatment of crime and criminals, the conflict between the two agencies, each of which had been given considerable authority to manage its own affairs since the advent of the New Deal, became more vitriolic and heated.
As a result of the Department’s efforts to utilize the expertise and public images of each in its effort to mobilize local forces and to attract greater support for its ant-crime policies, the two Bureaus had become more deeply embroiled in the debate then emerging between those who favored closer supervision and rehabilitation of convicted criminals on the one hand and those who, on the other, preferred a more hard-line and punitive approach. In the first years of the New
Deal, the latter, led by those forces responsible for the maintenance of order, had held sway among all levels of government, but the principal thrust of the New
Deal, its commitment to recovery and the restoration of a more balanced social and economic order, in combination with a growing confidence in the nation’s political strength and unity, had gradually shifted the focus of policy making, with the help of its public works and welfare programs, back to rehabilitation. That shift reflected a growing militancy on the part of the leadership of the Bureau of
Prisons and its state counterparts whose programs in parole and improved prison
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management were gaining greater recognition and financial support. In
February, 1935, the Bureau of Prison’s director Sanford Bates, reacting to a
series of articles addressing the nation’s scandalous recidivism rate, angrily
accused the Bureau of Investigation’s public relation’s office of fomenting a
growing rift among the components that together formed the nation’s many
criminal justice systems. Bates’ objections soon made their way to the Attorney
General who watched in growing alarm as the debate between his two bureau
heads became increasingly public. The growing controversy widened well beyond the purview of the federal government and helped to polarize opinion, providing sustenance to countless debates regarding a whole range of issues relating to the question of how best to contend with crime and to minimize its deleterious effects.50 Having foreseen the potential dangers of such a rift as
early as the previous year, Miller had encouraged the Attorney General to use his
influence to temper the Bureau of Investigation’s increasingly unrestrained
revilement of the nation’s criminal and those who sympathized with his plight, an
effort that earned him the Bureau’s enmity and would contribute, the following
year, to his decision to resign from his position with the Department.51 In truth, it
had become apparent to many that the Bureau of Investigation’s approach, while
attracting the support of the IACP and other police organizations that had long
suffered the public’s criticism for their intransigence and ineffectiveness and were
50 Letter from Sanford Bates to George Lorimer, Editor, Saturday Evening Post, February 13, 1935, Homer S. Cummings Papers, “Parole System, February 1935 – January, 1936,” Box 141; Memorandum for the Attorney General, February 18, 1935, Homer S. Cummings Papers, “Parole System, February 1935 – January, 1936,” Box 141. 51 J. Edgar Hoover, Memorandum for the Attorney General, June 29, 1936, Homer S. Cummings Papers, “FBI, January - December, 1936,” Box 191.
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eager to deflect the blame, had outlasted its usefulness and was threatening to undermine the government’s effort to reach out to all components of the nation’s criminal law systems. Miller had said as much when he wrote: “I am satisfied that the people have been stirred sufficiently, so far as their baser emotional reactions are concerned, as to the importance of hunting down and killing outlaws and that it is time for emphasis to be given to the deeper implications involved in the problem of crime control.”52 In April of 1936, the FBI was
instructed to desist from making any further public comment regarding the issue
of parole. Despite its instructions to the contrary and with the backing of the head
of the Department’s criminal division, the Bureau continued to provide local
police departments with information regarding recently paroled convicts, a
practice that further divided the Department along essentially functional lines and
thus further compromised the Attorney General’s leadership role in the
suppression of local crime.53
Unable to achieve a sense of unity within his own Department, Cummings
was increasingly absorbed by other issues of equal if not greater concern, not the
least of which involved the difficulties the Department was having in fulfilling its
new enforcement responsibilities. Within a year of the enactment of the fugitive
felon and the national stolen property acts of 1934, the Department had found it
necessary to caution its personnel to use greater discretion in the cases they
52 Justin Miller, Memorandum for the Attorney General, December 6, 1935, Homer S. Cummings Papers, “FBI, January, 1933 – December, 1935,” Box 191. 53 Sanford Bates, Memorandum for the Attorney General, April 14, 1936, “Parole System, March – May, 1936,” Homer S. Cummings Papers, “Parole System, February 1935 – January, 1936,” Box 141; Memorandum for the Attorney General, May 2, 1936, Homer S. Cummings Papers, “Parole System, March – May, 1936,” Box 141.
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chose either to investigate or prosecute under the acts. As written, these laws
had failed to clearly define those specific conditions that would justify the
involvement of the federal government, an oversight that resulted in far greater
expenditures and many more investigations than the Department’s planners had allowed for. As a result of the increased demand upon its time and resources, the FBI had been forced to defer certain types of investigations and to limit the time its field personnel could devote to any one assignment, the latter dictating,
in effect, what kinds of investigations they could perform. Faced with the
prospect of future budget cuts and a reduced work force, all to take effect in
1937, and with the increased scrutiny of congressmen, among them George
Norris of Nebraska, alarmed by the Bureau’s growing independence, the FBI
began to exercise greater caution in the matters it chose to pursue, redirecting
much of its effort toward those areas of enforcement with which it was more
familiar and which could produce the kinds of results that would sustain its
reputation for efficiency and productivity.54 The impact of these developments
upon the federal government’s enforcement policies, especially in relation to the anti-racketeering statute the in support of which the Department had thrown its
weight and prestige, was almost immediate and would signal the return of the
more traditional and distinctive approach to federal law enforcement.
By 1933, the year the Senate Commerce Committee first authorized an
investigation of the “rackets,” racketeering – then defined as “the systematic
54 William B. Breuer, J. Edgar Hoover and His G-Men (Westport, CN: Praeger, 1995), 28; J. Edgar Hoover, Memorandum for the Attorney General, December 14, 1935, Homer S. Cummings Papers, “Department Budgets, January 1935 – February, 1938,” Box 119; J. Edgar Hoover, Memorandum for the Attorney General, April 16, 1936, Homer S. Cummings Papers, “FBI, January - December, 1936,” Box 192.
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extortion of money from commercial enterprises by violence or intimidation”55 - and organized crime had become deeply imbedded in the nation’s urban life and social structure. Even during the hardest of times, commercialized vice, gambling, prostitution, and illicit narcotics, had remained the mainstay of the underground economy and the focus of organized criminal activity. Prohibition had not only encouraged new economies of scale and the adoption of more complex organizational structures among organized criminals, but also expanded their activity to include other enterprises, especially in the transportation industry, that had become vital to the distribution and marketing of the alcoholic beverage they produced. The Senate subcommittee formed under the leadership of Royal
Copeland of New York was, in many respects, reflective of the new spirit of law and order that had accompanied the arrival of the New Deal. Over the next two years, the “Rackets Committee,” chaired by Royal Copeland of New York, would tour the country, convening hearings in many of the nation’s major cities and collecting evidence of organized criminal activity that seemed to influence nearly all aspects of urban life.56 Though few of the witnesses who testified before the sub-committee could offer any concrete proposals for dislodging what were clearly the “most entrenched” and politically sensitive of all the criminal activities associated with life in the nation’s urban areas, they did help to elevate local
55 “A Note On The Racketeering, Bank Robbery, and “Kick-Back” Laws.” Law and Contemporary Problems 1, no. 4 (October 1934): 445-450, 445. 56 Stephen Fox, Blood and Power: Organized Crime In Twentieth-Century America (New York: William Morrow and Company, Inc., 1989), 51; T. J. English, Paddy Whacked: The Untold Story of the Irish American Gangster (New York: Regan Books, 2005), 52-53, 72; Irving Bernstein, The Lean Years: A History of the American Worker, 1920-1933 (New York: Houghton Mifflin Co., 1960), 338-340.
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concerns regarding the political and economic ramifications of organized crime.57
Soon after his appointment, Cummings had attacked racketeering as one of the greatest menaces facing the nation and complained of the constitutional restrictions that made direct federal action difficult, if not impossible.58 In
September of 1933, he issued a circular authorizing the United States Attorneys to file actions against known racketeers under the Sherman Anti-trust Act, which relieved them of the requirement of first referring the matter to the Department’s anti-trust division for approval.59 The failure of so many of the government’s
prosecutors to pursue this directive, however, underscored the difficulty of such
prosecutions and prompted the Attorney General to become more deeply
involved in the work of the Senate’s subcommittee. What had made racketeering
an insurmountable problem for the Department was its localized nature, and
there remained little that it could do given the present state of federal criminal
law.
Racketeering involved a form of extortion that was directed primarily at
local commercial enterprises, construction and trucking firms, as well as trade
unions, and as such it normally lay beyond the reach of federal jurisdiction. As a
form of intimidation for pecuniary gain or advantage, it was an activity that clearly
approached, but was not always seen as constituting criminal behavior. In the
highly competitive environment that characterized their world, trade unions and
57 Arthur M. Schlesinger, Jr., and Roger Burns, Eds. Congress Investigates: A Documentary History. 1792-1974. Vol. 4. (New York: Chelsea House, 1975), 3445. 58 Justice Department Press Release, September 11, 1933, “Predatory Crime,” June, 1933 to December, 1935, Homer S. Cummings Papers, Box 182. 59 Department of Justice, Circular 2493, November 8, 1933, Homer S. Cummings Papers, “Department Circulars and Miscellaneous Papers, November, 1933 – 1938,” Box 184.
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business enterprises would sometimes resort to such measures against their
rivals just as would the nation’s many urban political machines whose control over ordinance enforcement and permits provided both a source of funds, jobs to be distributed among their supporters, and political influence.60 The anti-trust
laws, which addressed combinations in restraint of trade, were mostly ineffectual in their application to the individual criminals whom the Attorney General had in
mind and whose activity had no or only an incidental effect upon interstate
commerce. Initial drafts of what would become the federal ant-racketeering act
met with some resistance among organized labor and others who believed that
their provisions were so sweeping in their scope as to constitute a direct threat to
their quite legitimate interests. Some compromise became inevitable, and the
final form of the bill that was enacted in 1934 reflected the ongoing concerns of
all parties involved regarding its application. Under the new act, which the
Department, in the interest of promoting its acceptance, had likened to the
Sherman Anti-trust Act, no federal prosecutions were permissible except under the express authority of the Attorney General and even then, they were limited to
only that criminal activity directed against interstate commerce. From the
beginning, however, questions arose regarding the constitutionality of the act.
The Department’s drafters, using the commerce clause to justify federal
intervention, had attempted to include within the scope of the bill all activities that
might affect, even indirectly, the flow of interstate commerce. The standard they
used, however, as a threshold requirement for federal intervention was far less
60 Leo Katcher, The Big Bankroll: The Life and Times of Arnold Rothstein (New Rochelle, NY: Arlington House, [1958] 1959), 268-269; Thomas Kessner, Fiorello LaGuardia and the Making of Modern New York (New York: McGraw Hill Publishing Company, 1989), 360.
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stringent than that ordinarily imposed in such matters by the Supreme Court, which required a more substantial or consequential effect to invoke federal jurisdiction. Aside from these uncertainties, which tended to cripple prosecutions under the act, were other, less evident considerations that would forestall more vigorous federal action against organized crime until well after the end of the
Second World War. In the early 1930s, any attempt by the government to target racketeers would invariably have involved local interests likely to have resisted such interest on the part of the federal government. The President’s political
party had achieved success in 1932, in some part, because of the support it had
received from many of the urban political machines whose ties with criminal organizations were either known or suspected.61 Prosecuting racketeers would
require taking action against powerful political machines and unions whose
influence in the Democratic Party was still great and needed. The Roosevelt
Administration’s ambivalent attitude toward the nation’s political machines and
the weaknesses of the Anti-Racketeering Act’s enforcement mechanism thus
combined to discourage the Justice Department from taking an active role in the
nation’s struggle against organized crime. Not until the early 1960s, when new
federal laws against interstate gambling were enacted, would the Justice
Department be provided with laws that could be effectively enforced against
organized crime.62 In the interim, that task would largely fall upon the shoulders
of local grassroots movements and prosecutors whose innovative approaches to
61 Lyle W. Dorsett, The Pendergast Machine (Lincoln: University of Nebraska Press, 1968), 103- 106. 62 Donald R. Cressy, Theft of the Nation: The Structure and Operations of Organized Crime in America (New York: Harper & Row, Publishers, 1969), 22.; William Helmer, Public Enemies: America’s Criminal Past, 1919-1940 (New York: Checkmark Books, 1998), 194.
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investigation and prosecution were better suited to the task than those of their
federal counterparts.63
By 1936, the prevailing sentiment among the nation’s law enforcement
officials regarding the role of the federal government in combating crime had
largely turned against any greater or continued activism on the government’s
part. Only the year before, the National Association of Attorneys General, meeting in Chicago, had urged local enforcement agencies to resume the full burden of their enforcement responsibilities and, in the interest of preserving their independence, to cooperate with one another in overcoming problems of mutual concern.64 In 1936, the Justice Department itself was forced to concede that the
government’s contributions could not possibly address all or even the most
important aspects of crime: “Society does not completely fulfill its duty in respect
of the crime problem if it devotes its attention solely to efforts at crime
suppression no matter how well directed and efficient such endeavors may be.
Just as preventive medicine plays an important role in maintaining the physical
health of the community, so must preventive methods be used in the field of
crime.”65 Faced with a growing backlash to its highly publicized, but now waning
campaign against bandits and other notorious criminals,66 the Department found
itself increasingly trapped by its own rhetoric: having justified its intervention on
the basis of the inadequacies of local and state criminal law enforcement, it could
63 Allan Nevins, Herbert H. Lehman and His Era (New York: Charles Scribner’s Sons, 1963), 181- 187. 64 State of New York, Proceedings of the Governor’s Conference On Crime, the Criminal and Society, September 30 to October 3, 1935, (Albany, New York, 1935), 140. 65 Department of Justice, Annual Report of the Attorney General of the United States For the Year 1936, (Washington, D.C: Government Printing Office, 1937). 66 O’Reilly, “A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security,” 645-646.
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not thereafter recognize advances in local responses to crime or make other
claims of success without jeopardizing the rationale originally given for its
involvement. As the nation’s preoccupation with crime, now devoid of its crisis-
driven urgency, lessened in its intensity, the “war” that had figured so prominently
in overcoming the public’s fear of crime was gradually being overshadowed by greater issues and larger concerns. Amidst these new conditions, the
Department found it increasingly difficult to complete its agenda. Resistance to the federal government’s anti-crime program stiffened after 1936 and would soon coalesce around the Roosevelt Administration final anti-crime initiative, national firearms regulation, which became an object lesson in the pitfalls of crisis-born policy-making.
In 1934, the nation’s obsession with organized crime provided the
Department with an opportunity to pursue a matter of great personal interest to both the President and his attorney general. Prior to that year, the only federal law addressing the question of firearms regulation was one, passed in 1927, banning handguns from the mails. As a strong advocate of gun control,
Cummings doubted the constitutionality of an outright ban on gun ownership, but believed that some form of regulation, which could aid in identifying the owners of the nation’s weapons and limit their distribution, his principal objective, was entirely feasible.67 Gun control was not then the emotionally charged issue that it was to become in the latter half of the Twentieth Century. Long considered a matter of local concern or preference, there were a great many local ordinances
67 Samuel C. Patterson and Keith R. Eakins, “Congress and Gun Control,” Edited by John M. Bruce and Clyde Wilcox, The Changing Politics of Gun Control (New York: Rowman & Littlefield Publishers, Inc., 1998), 48-49.
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and state laws that imposed some level of regulation in existence. However, like
most of the federal anti-crime legislation that had preceded it, the 1934 firearms
bill was introduced in reaction to an escalation of violence that was becoming a
frequent topic for comment in the nation’s news media and the subject of
considerable concern in the face of “an alarming rise in urban violence” that had
begun in the previous decade.68 The bill, which placed a heavy federal tax on
the manufacture and distribution of weapons, the machine gun in particular, more
commonly associated with criminal activity, was often and very deliberately
compared to the Harrison Narcotics Act, the constitutionality of which had long
been resolved. Originally framed so as to exclude only “sporting” rifles from it
purview, the act had been subsequently modified prior to its passage to exclude
handguns and shotguns as well, a revision that greatly reduced its effectiveness
and revenue producing potential as a tax measure. Nevertheless, the
Department greeted its enactment as a triumph over gangster violence and a
step toward restoring peace and order where only chaos and violence had once
prevailed.69 Within three years of its enactment, the weakness of the law as an
enforcement tool had become so apparent as to constitute an embarrassment requiring the Department’s attention. Cummings, recognizing that conditions had changed since the national firearms act had been passed and that the arguments made previously to justify federal intervention would no longer command the support they once did, resurrected his advisory committee to assist him in finding some way to tighten the provisions of the Act, but he was simply too late. In the
68 John Brabner-Smith, “Firearm Regulation,” Law and Contemporary Problems 1, no. 4 (October 1934), 400-414; Patterson and Eakins, “Congress and Gun Control,” 48. 69 Gregg Lee Carter, The Gun Control Movement (New York: Twayne Publishers, 1997), 67.
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intervening years, the parties who had been most influential in restructuring the original bill had become increasingly better organized and far more vocal in their opposition to any further attempts to advance the cause of national firearms regulation. Cumming’s new bill, which would be enacted in 1938, had been intended to cover the types of firearms that had been exempted from the operation of the 1934 Firearms Act, but the arguments raised by those who had protested its potential application against “legitimate” manufacturers and distributors would again result in modifications that would make convictions under the provision of the act extremely difficult.70 In 1938, following Homer
Cumming’s departure and the acceleration of the Department’s shift in attention to concerns regarding the nation’s internal security, the New Deal’s crime program came to its quiet and inevitable end.
70 Edward F. Leddy, Magnum Force Lobby: The National Rifle Association Fights Gun Control (New York: University Press of America, 1987), 85, 87; Leff and Leff, “The Politics of Ineffectiveness: Federal Firearms Legislation, 1919-1938,” 56-57.
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CONCLUSION
We have resisted, and we shall resist, all attempts to bring the Department of Justice into the sphere of State or local criminal activities. Attorney General Homer Cummings (1936)1
While it has long been a concern in this country, the “federalization” of
crime as we are currently experiencing it is a far more recent phenomenon. Its
roots are to be found in an entirely different and more recent era where the
federalist restraints upon the federal government have become increasingly political and less structural in nature and, therefore, more responsive to yet other competing concerns and priorities. It is the contrast, then, between the developing nature of federal crime policy in its formative years, the care with which it avoided preempting local policing functions, and the intensity and scope of current federal anti-crime activity which allows us to conclude that the origins of each are traceable to very different sets of historical circumstances. Despite the serious problems the federal government experienced in pursuing a growing list of law enforcement responsibilities, its subordinate role in the maintenance of law and order clearly could not have changed until well after the Second World
War. It was not, I would contend, until the enactment of Lyndon B. Johnson's
Omnibus Crime Control and Safe Streets Act in 1968 that the government first attempted to direct the operational priorities of state and local law enforcement agencies rather than merely complement or supplement them. Until then, the
"value of federalism and the concomitant virtue of decentralization in the criminal
1 Homer Cummings, “Progress Toward A Modern Administration of Criminal Justice In the United States: Address Delivered at the meeting of the North Carolina Conference for Social Service, Durham, North Carolina, April 27, 1936” (Washington, D.C.: Government Printing Office, 1938), 6.
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justice system"2 remained guiding principles among the nation's political
leadership and its policy-makers, both federal and local, finding recognition and
reinforcement in the jurisprudential reasoning of the day.3
Crime control, as chronicled in this work, has been an evolving and
interrelated process shaped largely by social and economic developments, new ideas, and the changing nature of crime itself. Throughout our history, crime
suppression consistently assumed a form dictated by a federalist framework
within which the adjustments necessary to meet the challenge of crime and the
threat of disorder could be made and the jurisdictional authority of the federal
government more easily accommodated, as long, that is, as it implicitly embodied
a policy forbidding the impairment of the powers of the states. The Roosevelt administration’s anti-crime initiatives in the 1930s closely conformed to this tradition and were never intended to supplant the larger and more complex policing responsibilities of the states, not they could have, given the bureaucratic capacities and limited resources of the federal government. Much as did the
historian James Patterson, so must we accept, in light of the considerable
evidence before us, that “the New Deal produced neither federal dictation, a
completely cooperative federalism, nor a new state progressivism. . . .” “For all
the supposed power of the New Deal,” Patterson wrote, it never consciously
attempted to impose its direction or will upon the states in quite the manner that
2 Gerald G. Ashdown, Symposium: Federalism and the Criminal Justice System: Introduction: Macro and Micro Evaluation of the Federalization of Crime, West Virginia Law Review 98 (Spring 1996), 812. 3 Lucas A. Powe, Jr., The Warren Court and American Politics, (Cambridge, MA; Harvard University Press, 2000), 10-11; Abbete v. United States, 349 U.S. 187, 195 (1959) in which the Supreme Court reiterated the principle that the responsibility for defining and prosecuting crimes resided with the states.
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is so in evidence today.4 The main “thrust” of the New Deal had been recovery:
its attention had been focused upon the task of recreating a balance of power in
the nation’s economic life that would also allow for a minimum level of economic
security.5 To achieve this end, it had pursued a wide array of legislation intended to stimulate the economy and to restore conditions within which the states and
the nation’s local governments could more adequately function. The New Deal’s
approach to crime suppression was, therefore, in so many ways, yet another
manifestation of this general approach: in effect, no different from the role it had
attempted to perform in restoring vigor and efficiency to the nation’s economic
life.
The image of policing the New Deal had sought to project - one which
emphasized professionalism, integrity, and respect for the rule of law - had been
used as much to regain and strengthen the public’s faith in law enforcement as it
was intended to instill in the nation’s police a sense of common purpose and
increased confidence in their expertise. To accomplish this task, the Department
of Justice turned to local officials and others for advice, inspiration, and support
before investing its resources in promoting the kinds of programs – a national
police training school, crime laboratories, uniform crime bills, a central office for
the compilation of crime statistics and the collection of fingerprints – for which
interest and demand among local law enforcement officials was especially
strong. As a provider of such services, however, the federal government was
doing no more than it had done in the past. Once again, it was taking advantage
4 James T. Patterson, The New Deal and the States: Federalism In Transition (Princeton, NJ: Princeton University Press, 1969), 202. 5 Samuel H. Beer, “The Modernization of American Federalism,” Publius 3, no. 2 (Fall 1973), 73.
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of the cross-jurisdictional scope of its operations to offer the kinds of centralized services and auxiliary support that reinforced a system of law enforcement
comprised of highly “independent and geographically dispersed police
agencies.”6 Despite the attention the Justice Department’s pursuit of bandits
and kidnappers received in the early 1930s, these anti-crime campaigns cannot,
by themselves, come close to matching what Roosevelt and Cummings
appreciated as the greater and more important contributions that could be made
by a broad and diverse range of law enforcement resources.
The publicity surrounding the federal anti-crime initiatives described in this work should not be allowed to detract from the contemporaneous efforts of the states to assume greater policing and penal responsibilities in the face of significant changes in the nation’s social and economic landscape.7 To a degree
still hardly appreciated, it was this expansion of state power, and the pressure it
exerted on behalf of a more efficient use of the states’ police powers, that made
federal collaboration inevitable and federal criminal law enforcement increasingly
necessary as a component of an expanding system and process of social
control. This trend did not begin to change until the 1960s. For much of the
decade, as the nation’s citizens watched the televised stories of rising crime and
racial tensions, witnessed first hand the rioting and violence in the nation’s cities,
and became caught up in the accelerated conflict between new ideas and old
realities, they felt increasingly menaced by those “confrontations and figures” that
6 Athan Theoharis, The FBI & American Democracy: A Brief Critical History (Lawrence: University of Kansas Press, 2004), 35. 7 Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore, MD: The Johns Hopkins University Press, 2002) Chapters 1, 2, 4 & 6.
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became emblematic of the chaos and disorder that seemed to surround them.
The resulting emotional furor and unchecked fear that generated renewed
demands upon the police and produced more classes of crimes soon led to a
new and more volatile political environment in which the “durable appeal” of the
older traditions of communal self-reliance and suspicion of strong centralized
government gave way to a more urgent demand for action. Driving these fears
and the political turmoil that helped to sustain them was a dramatic rise in street
crime and a drug epidemic that fueled the country’s rising crime rate, factors that
soon began to play a role in national politics as well.8
In 1964, both political parties attempted to address, albeit for different
reasons, what many voters viewed as an imminent break down of law and order.
Belaboring the erosion of the cultural values that underlay the nation’s social
system, Barry Goldwater, the Republican candidate for president in 1964, spoke
for millions when he demanded swift and decisive action on the part of the
federal government against this rising menace to communal order and personal
security.9 Once again, the federal government was faced with a dilemma. Once
again, the strengths and the limitations of local law enforcement were to be found
in its local focus and jurisdiction, but the responsibility for order was now
considered one more clearly shared, particularly in light of the federal
government’s improved institutional capacity, it greater resources, and its
responsibility for the maintenance of “domestic tranquility” in the face of riot and
8 Richard M. Scammon and Ben J. Wattenberg, The Real Majority: An Extraordinary Examination of the American Electorate (New York: Coward-McCann, 1970), 96-100, 166-68, 284-286; Patterson, The New Deal and the States, 202-203. 9 Gerald Caplan, “Reflections on the Nationalization of Crime, 1964-1968,” Law and the Social Order (1973), 588-589.
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cross-jurisdictional criminal conspiracies. This widespread fear of crime, in
combination with revelations regarding the influence of organized crime and the international dimensions of the drug trade, provided new incentives for federal intervention, but relatively few ideas as to how that could be safely accomplished within the country’s federal system.10 The real challenge, therefore, lay in the
development of some mechanism that could influence the overwhelmingly local
and diverse systems which continued to dominate the field of crime suppression.
In the 1930s, prevailing opinion regarding the limits of federal jurisdiction
under the commerce and tax clauses of the constitution and the need for
concerted action directed attention to new technologies which promised to
improve police efficiency at the local level. For years, the federal government
had employed a system of grants-in-aid to encourage states to participate in
programs, such as road construction and agricultural education, which were unquestionably in the national interest. As an alternative to the use of federal
power in the suppression of crime, however, grants-in-aid were an innovation
that left local law enforcement programs and police organizations virtually
untouched. It was not, in fact, until the Wickersham Commission itself
recommended improving intergovernmental cooperation in prohibition
enforcement through federal subsidies to state law enforcement agencies that the concept of federal grants was formally introduced in the field of crime control.11 By 1935, the concept of federal grants to local enforcement agencies
10 Nancy E. Marion, A History of Federal Crime Control Initiatives, 1960-1993 (Westport, CN: Praeger, 1994), 54. 11 Michael R. Belknap, “Uncooperative Federalism: The Failure of the Bureau of Investigation’s Intergovernmental Attack on Radicalism,” Publius 12, no. 2 (Spring 1982), 25-47, 45.
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had drawn such interest within law enforcement circles that the Attorney
General’s principal criminal law adviser felt compelled to propose just such a
program to his employer, suggesting, in the process, that federal grants could be
conditioned on meeting certain educational criteria and other standards of special
concern to the federal government.12 But federal monies for law enforcement,
however promising a means of effecting change, were in short supply. Even
more discouraging was the possibility that such grants, if funded, would be used
to force local agencies to conform their activities to federal policy goals, a
politically sensitive subject. Most government officials, including the Attorney
General, were fearful that such grants would ultimately “lead to revolutionary
changes in the internal politics of the various states,” an unacceptable outcome by any measure.13 As a result, federal grant policy would remain far more
concerned with securing state participation than with resolving the problems to
which it was to be applied, and the monies given to local communities for police
related projects, which, between 1934 and 1938, never amounted to more than
one and a quarter million dollars, would be used primarily to fund research.14
Inhibitions against the use of federal power remained strong for the
greater part of three decades following the end of the New Deal, reinforced, to a
large degree, by the clear differences between federal and local policing and the
12 Justin Miller, Memorandum to the Attorney General, “Federal Aid for State Criminal Law Enforcement,” January 24, 1935, Homer S. Cummings Papers, Advisory Committee On Crime, September, 1934 – December, 1936, Box 189. 13 Paul H. Sanders, “Federal Aid For State Law Enforcement,” Law and Contemporary Problems 1, no. 4 (October 1934), 473. 14 Herbert A. Johnson and Nancy T. Wolfe, History of Criminal Justice (2nd Ed.) (Cincinnati, OH: Anderson Publishing Co., 1996), 225; The George-Dean Act of 1936, which was intended primarily to assist vocational education, also provided funds to which police agencies, solely for the purpose of training their personnel, could have access. Neal E. Trautman, Law Enforcement: The Making of a Profession (Springfield, IL: Charles C. Thomas, Publisher, 1988), 20.
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problems associated with the larger and more varied enforcement responsibilities
borne by local police officials. In the years following the end of the Second World
War, federal law enforcement, aside from its internal security concerns, became increasingly specialized and predictable in the manner of its performance, an
orientation that stood in direct contrast to the more reactive and spontaneous
character of local law enforcement.15 By the late 1950s, however, the problems
faced by the nation’s police were further complicated by social and cultural changes that challenged established values and standards. Local authorities
were hard pressed to deal with the discontent that gripped certain elements of
the population and were increasingly placed on the defensive in responding to a
rising crime rate over which they seemed to have little control.
In the 1960s, the growing incidence of street crime took its place among a
host of political issues that were just beginning to attract attention, but unlike the
1930s, when the answer to rampant criminal activity focused upon the
professionalization of the police, and the improvement of their standards and
performance, there was no agreement as to the most likely sources of the present crisis.16 The desperation felt by so many law enforcement officials was
further aggravated by the Supreme Court’s activism in the field of criminal law
and by the highly controversial decisions it issued respecting the rights of
defendants to legal representation and other procedural safeguards that not only
raised fears of encroaching federal power, but also offended traditionalists
15 See the dissenting opinion of Supreme Court Associate Justice John Harlan in the case of Mapp vs. Ohio, 367 U.S. 643, 672-686 (1961) 16 James F. Richardson, Urban Police In the United States (Port Washington, NY: National University Publications, 1974), 135.
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among the police and their supporters who regarded the Court’s decisions as a
dangerous and unwanted interference with the functions of local law
enforcement. Rising crime rates and the threat posed by the growing frequency
of street riots, however, raised alarms regarding deficiencies in the technical
expertise and preparedness of local police agencies and again drew the attention
of the federal government. In 1965, in response to mounting public pressure,
President Lyndon Johnson created the Commission on Law Enforcement and
Administration of Justice, which appointed several task forces to probe the nature and dimensions of the nation’s crime problem. The President’s Commission had been asked to provide practical recommendations that could serve as the basis for future policy making. If, as it was suspected, the President had intended the
Commission merely as evidence of his concerns regarding crime, he sorely
underestimated the political realities that surrounded the issue and which would
ultimately require a more substantial federal commitment to its suppression than
he had originally anticipated.17 While recognizing the need to address the root
causes of crime and social unrest and though hoping to avoid “any invasion of
state and local responsibility for law enforcement and criminal justice,” the
Commission called instead for a federally funded “war on crime,” thereby forcing
a reluctant President to revisit the whole concept of federal grants for local law
enforcement.18
17 Lloyd E. Ohlin, “Report On the President’s Commission,” Edited by Mira Komarovsky, Sociology and Public Policy: The Case of Presidential Commissions (New York: Elsevier Scientific Publishing Company, Inc., 1975), 94-96 18 President’s Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime In a Free Society (Washington, D.C.: Government Printing Office, 1967), 285.
504
Johnson was faced with a difficult choice. Reluctant to commit substantial
federal resources to a new national campaign against crime and much more
inclined to throw what remained of his political capital behind the anti-poverty and
retraining programs he had created and which, he believed, offered greater
promise in reducing crime overall, the President hesitated to approve federal
crime initiatives that would likely interfere with what he strongly believed were
fundamentally local responsibilities.19 His own commission, however, had very
publicly acknowledged that crime and drugs had become national issues and were, therefore, appropriate subjects for aggressive federal attention. Burdened by an organizational structure and a prosecutorial focus that made policy innovation or planning difficult, the Justice Department soon proved that it was simply not up to the task of assuming the leadership of such an enterprise, and
the momentum behind federal action was eventually taken up by Congress.20
The result was the enactment of the Omnibus Crime Control and Safe
Streets Act of 1968,21 which, among other things, created the Law Enforcement
Assistance Administration (LEAA), an organization which, as originally
conceived, was intended to offer a more balanced allocation of funds among the
various components of the nation’s criminal justice systems while increasing the
coordination and effectiveness of crime suppression efforts at all levels of
government. Pursuing what were essentially divergent and sometimes
19 Caplan, “Reflections on the Nationalization of Crime,” 587; Lyndon Baines Johnson, The Vantage Point: Perspectives of the Presidency, 1963-1969 (New York: Holt, Rinehart and Winston, 1971), 335. 20 John T. Elliff, Crime, Dissent and the Attorney General: The Justice Department In the 1960’s (Beverly Hills, CA: SAGE Publications, 1971), 7-9. 21 Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C., Sec. 2518.
505
incompatible goals and unable to achieve any consistency in its policy making,
the LEAA failed to fulfill its mandate or to secure the cooperation of those
“contentious and well-entrenched” groups of local officials who, while accepting
the monies provided them, resented the conditions imposed upon their use.22
Where the LEAA did achieve some success was in the development of new devices, techniques, and approaches to law enforcement that soon became the standard among local police departments across the nation.
The unease with which the Democratic party greeted the LEAA’s growing emphasis upon law enforcement and new crime suppression techniques, along with its spreading influence among local enforcement circles, revealed the existence of a kind of ideological divide between the Democrats and their
Republican opponents who welcomed the LEAA’s focus on crime detection and suppression. The latter seemed temperamentally more inclined to perceive criminal acts as deserving of swift and severe punishment, an attitude toward social-control programs that inevitably influenced the policy choices and decision-making of Johnson’s successor, Richard M. Nixon. Nixon favored fewer restraints upon local law enforcement agencies and rejected the Democratic
Party’s view of crime as a reflection of “the social and economic conditions of society.”23 But he remained concerned about the impact of the LEAA’s programs
upon the local organizations who were its principal beneficiaries. From its
inception, the LEAA had insisted that all federal monies consigned to its program
22 Stuart A. Scheingold, The Politics of Law and Order: Street Crime and Public Policy (New York: Longman, 1984), 84. 23 Marion, A History of Federal Crime Control Initiatives, 11-12; Greg A. Caldeira and Andrew T. Cowart, “Budgets, Institutions, and Change: Criminal Justice Policy in America,” American Journal of Political Science 24, no. 3 (August 1980), 418-419.
506
be allocated by state planning agencies which would ensure state compliance
with federal policy guidelines. The effect of this decision was to loosen, over time, the controlling influence or authority of state legislatures and local
governments over the enforcement and other criminal justice agencies that were
receiving federal funds. Nixon’s “New Federalism” was intended to correct such
problems and to restore control to the local government bodies that had
exercised it in the past.24 In time, the LEAA’s policy would undergo change, in
part because of the President’s growing obsession with his increasingly popular
“war on drugs.”25
In retrospect, one could conclude that President Nixon’s term in office
signaled the beginning of a radical shift in the orientation of federal crime policy in the 1980s. By then, crime as an issue had become so heavily politicized as to have resulted in the near erasure of those federalist distinctions that had long characterized the nation’s experience with crime and law enforcement. By giving more power to the federal government over a growing list of crimes, federal legislators discovered new opportunities to demonstrate their responsiveness to the public’s fear of crime discontent as well as their leading roles in providing the federal government with unprecedented authority to pursue a nationwide
campaign of drug and crime eradication. What effect it will or is having upon our federalist system remains yet unclear, but what is most surprising, given the strength and “durability” of those federalist traditions that have been so treasured
24 Virginia Gray and Bruce Williams, The Organizational Politics of Criminal Justice (Lexington, Massachusetts: D. C. Heath and Company, 1980), 4-5, 10-11. 25 Katherine Beckett, “Setting the Public Agenda: ’Street Crime’ and Drug Use In American Politics,” Social Problems 41, no. 3 (August 1994), 427.
507
throughout our history, is this nation’s apparent willingness to decide such
questions by some vague sense of balance, by a process defined less by the
meaning and application of constitutionally grounded restraint than by the yaw of
everyday politics and the emotions and preferences to which it so often provides opportunities for expression.
The past does give us ample reason to be concerned about the present.
Federal crime control measures have always been, for the most part, reactionary in nature. The circumstances that led to their formulation, the haste with which they were adopted, and the often extreme nature of their provisions and disproportionate penalties have invariably raised questions as to their propriety or even necessity. Federal crime laws, once in place, have proven stubbornly resistant to local feeling or preferences and were rarely reevaluated or modified to meet changing conditions or the appearance of new impediments. Cultural and regional conflict over the consumption of alcohol, for example, encouraged
some states to evade their enforcement responsibility and led to a questionable
record of success for federal law enforcement overall. For many of those who
were especially critical of federal crime policy, among whom stood then Governor
Franklin D. Roosevelt, federal law enforcement, given its specialized nature and orientation, presented itself as a poor substitute to local enforcement traditions and resources. Even as president, Roosevelt, perhaps more clearly than have any of his successors, understood the practical considerations that limited federal action, recognized as well that the federal system of law enforcement was hardly immune to the twin evils of excessive zeal and political malice. Possessed of few
508
institutional resources with which to enforce the law and sensitive to those apprehensions his program of recovery was causing, Roosevelt elected instead to reinforce the nation’s confidence in its local systems of laws and law enforcement through measures designed primarily to restore vigor and determination to the institutions of local law enforcement. What undoubtedly prevented the President and his administration from pursuing and developing a more activist approach to crime fighting was the realization, borne upon their experience and knowledge of history, that “federal criminal justice had been more subject to the changing winds of politics, to fashions and movements, than
[comparable] state systems.”26
Federal law enforcement had always been “more ancillary, less
fundamental in its focus” than its local counterpart and as such, it clearly lacked
the foundational requirements and breadth of vision that were so characteristic of the more balanced local and state systems through which justice, and the values it preserved, were customarily dispensed. If crime and its punishment were to be
meted out fairly, then it would have to reflect the values, moral preferences, and social temper of those who were most responsible for its application. For
Roosevelt and his contemporaries, criminal law was the outgrowth of a process of “social conflict and adjustment” that could proceed only through some form of bargaining process from which a consensus of opinion might emerge regarding the degree to which each community would be allowed to exercise control over
26 Lawrence M Friedman, Crime and Punishment In American History (New York: Basic Books, 1993), 268.
509
the conduct of its own citizenry.27 Against the geographic and demographic
realities of the nation, the federal government, then as now, stood little chance of
fulfilling this basic requirement for dispensing justice. It is a lesson worth
remembering.
27William Seagle, “The American National Police: The Dangers of Federal Crime Control.” Harper’s 169 (November, 1934), 759-760.
510
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Theoharis, Athan. The FBI & American Democracy: A Brief Critical History. Lawrence: University Press of Kansas, 2004.
Timberlake, James H. Prohibition and the Progressive Movement, 1900-1920. Cambridge, Mass.: Harvard University Press, 1963.
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Vizzard, William J. In the Cross Fire: a Political History of the Bureau of Alcohol, Tobacco, and Firearms. Boulder: Lynne Rienner Publishers, 1997.
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Wade, Wyn Craig. The Fiery Cross: The Ku Klux Klan In America. New York: Simon and Schuster, 1987.
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Walker, William O., III, Ed., Drug Control Policy: Essays In Historical and Comparative Perspective. University Park: The Pennsylvania State University Press, 1992.
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Whitehead, Don. The FBI Story: A Report to the People. New York: Random House, 1956.
Wicker, Tom. Investigating the FBI. Garden City: Doubleday, 1973.
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Willebrandt, Mabel Walker. The Inside of Prohibition. Indianapolis, Ind.: The Bobbs-Merrill Company, 1929.
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Williams, T. Harry. Huey Long. New York: Alfred A. Knopf, 1970.
Wilson, Frank John and Beth Day. Special Agent; a Quarter Century With the Treasury Department and the Secret Service. New York, Holt, Rinehart and Winston, 1965.
Wilson, R. Jackson, Ed. Reform, Crisis, and Confusion, 1900-1929. New York: Random House, 1970.
Winfield, Betty Houchin. FDR and the News Media. Urbana; Chicago: University of Illinois Press, 1990.
Witherspoon, Patricia D. Within These Walls: A Study of Communication Between Presidents and Their Senior Staffs. New York; Westport, CT: Praeger, 1991.
Wood, Stephen B. Constitutional Politics In the Progressive Era: Child Labor and the Law. Chicago: The University of Chicago Press, 1968.
Wooddy, Carroll H. The Growth of the Federal Government 1915-1932. New York: McGraw-Hill Book Company, Inc., 1934.
Woodiwiss, Michael. Crime, Crusades and Corruption: Prohibitions In the United States, 1900-1987. Totwa, NJ: Barnes & Noble Books, 1988.
Wright, Richard O., Ed. Whose FBI? LaSalle, IL: Open Court Publishers, 1974.
541
Zimmermann, Frederick L. and Mitchell Wendell. The Interstate Compact Since 1925. Chicago: The Council of State Governments, 1951.
Zimring, Franklin E. and Gordon Hawkins. The Search For Rational Drug Control. Cambridge; New York: Cambridge University Press, 1992.
Public Documents
Annual Report of the Attorney General of the United States For the Year 1909 (Washington: Government Printing Office, 1909).
Annual Report of the Attorney General of the United States for the Year 1912 (Washington, D.C.: Government Printing Office, 1912).
Annual Report of the Attorney General of the United States For the Year 1918 (Washington, D.C: Government Printing Office, 1919).
Annual Report of the Attorney General of the United States For the Year 1920 (Washington, D.C: Government Printing Office, 1921).
Annual Report of the Attorney General of the United States For the Year 1936 (Washington, D.C: Government Printing Office, 1937).
Annual Report of the Commissioner-General of Immigration, 1909 (Washington, D.C.: Government Printing Office, 1909).
Attorney General's Conference on Crime: Proceedings of the Attorney General's Conference On Crime Held December 10-13, 1934. Washington D.C. Washington, Printed under the supervision of the Bureau of Prisons, Dept. of Justice, 1936.
Attorney General’s Task Force On Violent Crime: Final Report. Washington, D.C.: Department of Justice, 1981.
Calhoun, Frederick S. The Trainers. Glynco, GA: Federal Law Enforcement Training Center, 1996.
Federal Prison Industries. Factories With Fences: The History of Federal Prison Industries. Sandstone, MN: Federal Prison Industries, 1996.
Governor's Conference on Crime, the Criminal and Society. Proceedings of the Governor's Conference on Crime, the Criminal and Society, September 30 to October 3, 1935, Albany, New York. Albany, 1936[?].
Hoover, John Edgar. Excerpt from the testimony of J. Edgar Hoover on January 19, 1932, before the sub-committee of the House of representatives
542
Committee on appropriations, considering the appropriation for the Department of justice for the fiscal year 1933. Washington, D.C. 1932.
Inaugural Addresses of the Presidents of the United States From George Washington 1789 to Lyndon Baines Johnson 1965. 89th Cong., 1st Sess. House Doc. No. 51. Washington, D.C.: U.S. Government Printing Office, 1965.
Indiana. House of Representatives. Indiana Conference On Law Observance and Enforcement. Indianapolis: William B. Burford Printing Company, 1929.
Interstate Conference On Crime. Proceedings of Interstate Conference On Crime, Held at the State House, Trenton, N.J., October 11 and 12, 1935. The Conference, 1935.
Masanz, Sharon D., Congressional Research Service, Library of Congress, History of the Immigration and Naturalization Service: a report prepared at the request of Senator Edward M. Kennedy, Chairman, Committee on the Judiciary, United States Senate, for the Use of the Select Commission on Immigration and Refugee Policy (Washington: U.S. Government Printing Office, 1980.
Mitchell Palmer, Investigation Activities of the Department of Justice; Letter From The Attorney General In Response To A Senate resolution of October 17, 1919 (Washington, D.C.: Government Printing Office, 1919).
National Commission On Law Observance and Enforcement, Report On Crime and the Foreign Born (Washington, D.C.: Government Printing Office, 1931).
National Commission On Law Observance and Enforcement, Report On the Enforcement of the Prohibition Laws In the United States, January 7, 1931 (Washington, D.C.: Government Printing Office, 1931).
National Commission On Law Observance and Enforcement. Chafee, Zechariah; Walter H. Pollak; and Carl S. Stern. Unfairness In Prosecutions. Report to the National Commission On Law Observance and Enforcement. Washington, D.C.: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Enforcement of the Prohibition Laws of the United States. Message from the President of the United States transmitting a report of the National Commission on Law Observance and Enforcement relative to the facts as to the enforcement, the benefits, and the abuses under the prohibition laws, both before and since the adoption of the eighteenth amendment to the Constitution. Washington, U.S. Government Printing Office, 1931.
543
National Commission On Law Observance and Enforcement. Report On Crime and the Foreign Born. Washington: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Report On Criminal Procedure. Washington: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Report On Criminal Statistics. Washington: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Report On Lawlessness In Law Enforcement. Washington: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Report On Police. Washington: U.S. Government Printing Office, 1931 (Reprint Edition, Arno Press, Inc, 1971).
National Commission On Law Observance and Enforcement. Report On Prosecution. Washington: U.S. Government Printing Office, 1931.
National Commission On Law Observance and Enforcement. Report On the Enforcement of the Deportation Laws of the United States. Washington: U.S. Government Printing Office, 1931.
National Conference of Commissioners On Uniform State Laws. Uniform Narcotic Drug Act; Drafted by the National Conference of Commissioners On Uniform State Laws and by it Approved and Recommended For Enactment In All the States at its Forty-second Annual Conference at Washington, D.C., October 4-10, 1932. Washington, D.C.: U.S. Government Printing Office, 1933.
National Conference on the Reduction of Crime (1927: Washington, D.C.) A Full Report of the Proceedings of the National Conference On the Reduction of Crime, Called By the National Crime Commission, Washington, D.C., November 2nd and 3rd, 1927 [New York, 1928[?].
New York. Advisory Committee On the Narcotic Problem (Martin Conboy, Chm.). Narcotic Drug Addiction In New York State. Report to Hon. Franklin D. Roosevelt, Governor of New York. January 14, 1934.
Palmer, A. Mitchell. Investigation Activities of the Department of Justice: Letter From The Attorney General In Response To A Senate Resolution of November 17, 1919. 66th Congress, 1st Session, Senate, Document No. 153. Washington, D.C.: Government Printing Office, 1919.
544
President’s Commission on Law Enforcement and Administration of Justice. Task Force Report: The Police. Washington, D.C.: Government Printing Office, 1969.
Public Papers of the Presidents of the United States, Herbert Hoover, Containing the Public Messages, Speeches, and Statements of the President, March 4 to December 31, 1929 (Washington, D.C.: Government Printing Office, 1974).
South Carolina. General Assembly. Joint Committee To Investigate Law Enforcement. Report of Joint Committee Created Under Joint Resolution 662 of 1937 To Investigate Law Enforcement. New York: Arno Press, Inc., 1974 [1937].
State of New York, Proceedings of the Governor’s Conference On Crime, The Criminal, and Society, September 30 to October 3, 1935. Albany, NY: [np], 1936.
Testimony of Attorney General William D. Mitchell, United States. Congress. Senate. Committee on the Judiciary. Investigation of Prohibition Enforcement. Hearing[s] before the Committee on the Judiciary, United States Senate, Seventy-first Congress, second session, on S.Res. 211, a resolution authorizing the Committee on the Judiciary to investigate the activities of the Bureau of Prohibition and all matters in anywise pertaining to the enforcement of the prohibition laws of the United States. Washington, U.S. Government Printing Office, 1930.
United States Congress, Senate, Committee On Immigration, Reports of the Immigration Commission, Immigration and Crime, 61st Congress, 3rd Sess. (December 5, 1910), Senate Document No. 750 (Washington, D.C.: Government Printing Office, 1911.
United States Customs Service. A History of Enforcement in the United States Customs Service, 1789-1875. Washington, D.C.: Treasury Department, 1986.
United States Department of the Treasury, Internal Revenue Service, 75 years of IRS Criminal Investigation History, 1919-1994 (Washington, D.C.: Dept. of the Treasury, Internal Revenue Service, 1996).
United States Senate. Select Committee on Investigation of the Attorney General. Investigation of Hon. Harry M. Daugherty, formerly Attorney General of the United States. Hearings. (Washington: U.S. Government Printing Office, 1924).
United States. Congress. House of Representatives. Committee On Appropriations. Department of Justice Appropriation Bill for 1935: Hearings
545
Before the Subcommittee. Wash., D.C.: U.S. Government Printing Office, 1934.
United States. Congress. House of Representatives. Committee On Appropriations. Hearings Before the Subcommittee of House Committee On Appropriations In Charge of Departments of State, Justice, Commerce, and Labor Appropriation Bill For 1937. Seventy-Fourth Congress, Second Session. February 10, 1936. Washington, D.C.: U.S. Government Printing Office, 1936.
United States. Congress. House of Representatives. Committee On the Judiciary. The Prohibition Amendment: Hearings. 71st Cong., 2d sess.. Washington: U.S. Government Printing Office, 1930.
United States. Congress. House of Representatives. Committee On the Judiciary. Kidnapping: hearing . . . on H.R. 5657, February 26, 1932. Washington, D.C.: U.S. Government Printing Office, 1932.
United States. Congress. House of Representatives. Committee on Ways and Means. National Firearms Act: Hearings, April 16-May16, 1934, on H.R. 9066. Washington, D.C.: U.S. Government Printing Office, 1934.
United States. Congress. House of Representatives. Inaugural Addresses of the Presidents of the United States From Washington 1789 to Lyndon Baines Johnson 1965. 89th Cong., 1st Sess.. House Document No. 51. Washington, D.C.: U.S. Government Printing Office, 1965.
United States. Congress. House of Representatives. Proposals To Improve Enforcement of Criminal Laws of the United States: Message from the President of the United States Transmitting Comments Upon Proposals To Improve Enforcement of the Criminal Laws of the United States. Document No. 252. 71st Cong., 2d Sess. Washington: U.S. Government Printing Office, 1930.
United States. Congress. Senate. Committee On Commerce. Sub-Committee on Crime and Crime Control. Investigation of So-Called “Rackets;” Digest of Hearings Held During Year 1933 Pursuant to S. Res. 74…. Wash., D.C.: U. S. Government Printing Office, 1934.
United States. Congress. Senate. Committee On Commerce. To Regulate Commerce In Firearms: Hearings before a subcommittee, May 28-29, 1934, on S. 885, S. 2258, bills to regulate commerce in firearms, and S. 3680, a bill to provide for the taxation of manufacturers, importers, and dealers in small firearms and machine guns, to tax the sale or other disposal of such weapons, and to restrict transportation and regulate interstate transportation thereof. Washington, D.C.: U. S. Government Printing Office, 1934.
546
United States. Congress. Senate. Committee on Immigration. Reports of the Immigration Commission. Immigration and Crime. December 5, 1910. Sixty- first Congress, Third Session. Senate Document No. 750. Washington: U.S. Government Printing Office, 1911.
United States. Congress. Senate. Committee on the Judiciary. Investigation of Prohibition Enforcement. Hearing[s] before the Committee on the Judiciary, United States Senate, Seventy-first Congress, second session, on S.Res. 211, a resolution authorizing the Committee on the Judiciary to investigate the activities of the Bureau of Prohibition and all matters in anywise pertaining to the enforcement of the prohibition laws of the United States. Washington, U.S. Government Printing Office, 1930.
United States. Congress. Senate. Committee on the Judiciary. Transfer of Prohibition Unit. Hearing[s] before a subcommittee of the Committee on the Judiciary, United States Senate, Seventy-first Congress, second session, on H.R. 8574, an act to transfer to the attorney general certain functions in the administration of the National Prohibition Act, to create a Bureau of Prohibition in the Department of Justice, and for other purposes; and S. 3084, a bill transferring to the Department of Justice certain rights, privileges, powers, and duties relating to the National Prohibition Act, and for other purposes. Washington: U.S. Government Printing Office, 1930.
United States. Congress. Senate. Select Committee on Investigation of the Attorney General. Investigation of Hon. Harry M. Daugherty, formerly Attorney General of the United States. Hearings. Washington: U.S. Government Printing Office, 1924.
United States. Department of Justice, Criminal Division. Crime Laws of the 73d Congress. Washington, D.C.: Government Printing Office, 1934.
United States. Department of Justice. Federal Bureau of Investigation. Ten Years of Uniform Crime Reporting 1930-1939. A Report. Washington, D.C.: Federal Bureau of Investigation, 1939.
United States. Department of Justice. Functions of the Department of Justice; letter from the Attorney General transmitting in response to Senate resolution No. 351 (72d Congress) a report of all functions. Washington, D.C., April 11, 1933.
United States. Department of Justice. Investigation Activities of the Department of Justice. Letter from the Attorney General transmitting in response to a Senate resolution of October 17, 1919, a report on the activities of the Bureau of investigation of the Department of Justice against persons advising anarchy, sedition, and the forcible overthrow of the government. 66th Cong., 1st sess. Senate. Doc. 153. Washington: U.S. Government Printing Office, 1919.
547
United States. Department of Justice. The Federal Bureau of Investigation. Washington, D.C.: July 10, 1937.
United States. Department of the Treasury, Internal Revenue Service 75 years of IRS Criminal Investigation History, 1919-1994. Washington, D.C.: Dept. of the Treasury, Internal Revenue Service, 1996.
United States. Department of the Treasury. Protection against habit forming drugs; a survey of law enforcement and other activities of the United States Treasury department in dealing with the narcotic problem. Washington, D.C.: April 12, 1935.
United States. Federal Bureau of Investigation. A booklet concerning the work of the Bureau of Investigation. Published for the information of peace officers and law enforcement officials of the United States. Washington: U.S. Government Printing Office, 1929-.
United States. Federal Bureau of Investigation. Accomplishments of the Federal Bureau of Investigation, United States. Department of Justice, during the fiscal year ended June30, 1937. Washington, D.C., July 20, 1937.
United States. Laws, statutes, etc., 1933-1934 (73d Cong.) Crime laws of the 73d Congress. Washington: U.S. Government Printing Office, 1934.
United States. Library of Congress. Legislative Reference Service. Federal restrictions on interstate transportation of firearms, compiled by W.C. Gilbert. Washington, D.C.: July 26, 1933.
United States. Senate. Committee On Judiciary. The National Prohibition Law: Hearings. 69th Cong., 1st sess. Washington: U.S. Government Printing Office, 1926.
Journal Articles
“A Note On The Racketeering, Bank Robbery, and “Kick-Back” Laws.” Law and Contemporary Problems (October 1934) 1(4): 445-450.
“Exchange of Fingerprints.” Journal of Criminal Law and Criminology. (November-December 1932) 23: 681-682.
“Extending Federal Powers Over Crime.” Law and Contemporary Problems (October 1934) 1(4): 400-508.
548
“Federal Survey.” Journal of Criminal Law and Criminology. (March 1936) 26: 942-943.
“Federal Technical Laboratory.” Journal of Criminal Law and Criminology (May- June 1934) 25: 171.
“Federalization of Police Urged,” Journal of the American Institute of Criminal Law and Crime 24 (May/June, 1933 – March/April, 1934), 619.
“Moley To Make Federal Survey,” Journal of the American Institute of Criminal Law and Crime 24 (May/June, 1933 – March/April, 1934), 618-619.
“National Anti-crime Conference.” Journal of Criminal Law and Criminology (January-February 1934) 24: 973.
“Police Recommendation.” Journal of Criminal Law and Criminology (May/June 1933 – March/April 1934) 24: 801-804.
“Proposals For Improving Criminal Law and Procedure.” Journal of Criminal Law and Criminology Vol. 24 (January-February 1934): 975-977.
“Reports of the Wickersham Commission.” Journal of Criminal Law and Criminology (November 1931) 22: 613.
“Steps Toward National Co-Ordination of Police Agencies,” Public Management 15, no. 11 (November, 1933), 348-349.
“The Attorney General and Presidential Power: Robert H. Jackson, Franklin Roosevelt, and the Prerogative Presidency,” Presidential Studies Quarterly (Winter 1982) Volume XII, No.1
“United States Crime and Law Enforcement.” Current History 1967 53(311): 1-42, 49-52. (also 53(312): 107-110, 116).
“Work of the Commission.” Journal of Criminal Law and Criminology (August 1937) 28: 295-297.
“Work of the Division of Investigation.” Journal of Criminal Law and Criminology (November-December 1935) 24: 798-801.
Anslinger, Harry J. “Organized Protection Against Organized Predatory Crime: VI. Peddling of Narcotic Drugs.” Journal of Criminal Law and Criminology (September-October 1933) 24: 636-655.
B. A. A. “Proposed Ministry of Justice.” Journal of Criminal Law and Criminology. Vol. 23 (January-February 1933): 863-864.
549
Bates, Leonard J. “The Teapot Dome Scandal and the Election of 1924.” American Historical Review (1955) 60(2): 303-322.
Beckett, Katherine. “Setting the Public Agenda: ’Street Crime’ and Drug Use In American Politics.” Social Problems (August 1994) 41(3): 425-447.
Beckman, Marlene D. “The White Slave Traffic Act: Historical Impact of a Federal Crime Policy On Women.” Women & Politics (February 1984) 4(3): 85-101.
Beer, Samuel. “The Modernization of American Federalism.” Publius (Fall 1973) 3(2): 50-95.
Belknap, Michael R. “Uncooperative Federalism: The Failure of the Bureau of Investigation’s Intergovernmental Attack On Radicalism.” Publius (Spring 1982) 12(2): 25-47.
Benedict, Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review (1985) 3:293-331.
Benedict, Michael Les, “Preserving Federalism: The Waite Court and Reconstruction.” Supreme Court Review (1978): 39-79.
Benson, George C. S. “Federal-State Personnel Relations.” The Annals of the American Academy of Political and Social Science (January 1940) 207: 79-92.
Bomar, Horace L. “The Lindbergh Law.” Law and Contemporary Problems: Extending Federal Powers Over Crime. (October 1934) 1(4): 435-444.
Booth, David A. “On Crime Commission Reports.” Polity (Fall 1969) 2(1): 92-99.
Brabner-Smith, John. “Firearm Regulation.” Law and Contemporary Problems: Extending Federal Powers Over Crime (October 1934) 1(4): 400-414.
Browning, Carrott, M. “The Supreme Court and Law and Order In the 1920’s.” Maryland Historian (1985) 16(2): 12-26.
Burnham, J. C. “New Perspectives On the Prohibition ‘Experiment’ of the 1920s.” Journal of Social History (Fall 1968) 2(1): 51-68.
Caldeira, Greg A. and Cowart, Andrew T. “Budgets, Institutions, and Change: Criminal Justice Policy in America.” American Journal of Political Science (August, 1980) 24(3): 413-438.
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Caperi, Dominic J. “Al Capone: Symbol of a Ballyhoo Society.” Journal of Ethnic Studies (1975) 2(4): 33-46.
Caplan, Gerald. “Reflections On the Nationalization of Crime, 1964-68.” Law and the Social Order (1973): 583-638.
Clark, Jane Perry. “Joint Activity Between Federal and State Officials.” Political Science Quarterly (June 1936) 51(2): 230-269.
Coben, Stanley. “A Study In Nativism: The American Red Scare of 1919-20.” Political Science Quarterly (March 1964) 79(1): 52-75.
Cole, Merle T. “Birth of the West Virginia State Police, 1919-1921.” West Virginia History (Fall 1981) 43(1): 1-20.
Croog, Charles F. “FBI Political Surveillance and the Isolationist-Interventionist Debate, 1939-1941.” Historian (1992) 54(3): 441-458.
Current Notes,” Journal of American Institute of Criminal Law and Criminology 24 (May-June, 1933 – March-April, 1934), 619.
Dean, Gordon. “The Interstate Compact: A Device for Crime Repression.” Journal of Criminal Law and Criminology. (October 1934) 1: 460-471.
Donner, Frank. “How J. Edgar Hoover Created His Intelligence Powers.” Civil Liberties Review (1977) 3(6): 34-51.
Durham, G. Homer. “Politics and Administration In Intergovernmental Relations.” The Annals of the American Academy of Political and Social Science (January 1940) 207: 1-6.
Elliff, John T. “Aspects of Federal Civil Rights Enforcement: The Justice Department and the FBI, 1939-1964.” Perspectives In American History (1971) 5: 65-673.
Elliff, John T. “Federal Law Enforcement In America.” Current History (1971) 60(358): 335-340.
Fass, Paula S. “Making and Remaking an Event: The Leopold and Loeb Case In American Culture. Journal of American History (1993) 80(3): 919-951.
Fish, Peter G. “Crisis, Politics, and Federal Judicial Reform: The Administrative Office Act of 1939.” Journal of Politics (1970), 32: 599-627.
Fishman, Mark. “Crime Waves As Ideology.” Social Problems (June 1978) 25(5): 531-543.
551
Gibson, Dirk C. “The Making of the Hoover Myth: A Critical Analysis of FBI Public Relations.” Public Relations Quarterly (Fall 1988) 33(3): 7-15.
Gilham, Steven A. “The Politics of Crime Control Policy.” Policy Studies Journal (1984) 12(3): 573-581.
Graebner, William, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64, no. 2 (September, 1977, 331-357.
Gray, Charles M.; Gray, Virginia; and Williams, Bruce. “ Federalism, Policy, and Innovation In Corrections.” Policy Studies Review (1981) 1(2): 288-297.
Guthrie, John J., Jr. “Hard Times, Hard Liquor, and Hard Luck: Selective Enforcement of Prohibition In North Florida, 1928-1933.” The Florida Historical Quarterly (April 1994) 72 (4): 435-452.
Hadley, Arthur T. “Law Making and Law Enforcement.” Harper’s Magazine (November 1925) 151: 641-646.
Hall, Jerome. “Federal Anti-theft Legislation.” Law and Contemporary Problems (Oct. 1934) 1: 424-434.
Haller, Mark H. “Historical Roots of Police Behavior: Chicago, 1890-1925.” Law and Society Review 1976 10(2): 303-323.
Haller, Mark. H. “Urban Crime and Criminal Justice: The Chicago Case.” Journal of American History (1970) 57(3): 619-635.
Harker, Oliver A. “The Supervision of United States District Attorneys By the Attorney General In Criminal Cases.” University of Illinois Bulletin (November 24, 1913) 11 (13): 1-16.
Hawkins, Darnell F. “State Versus County: Prison Policy and Conflicts Of Interest In North Carolina.” Criminal Justice History, An International Annual (1984) 5: 91-128.
Hays, Samuel P. "The Politics of Reform in Municipal Government in the Progressive Era," Pacific Northwest Quarterly (October 1964) 55: 157-169.
Hays, Samuel P. "The Social Analysis of American Political History, 1880-1920," Political Science Quarterly (September 1965) 80(3): 373-394.
Helmer, William J. “The Depression Desperados: A Study In Modern Myth Making.” Mankind (1975) 5(2): 40-46.
552
Heymann, Philip B. and Moore, Mark H. “The Federal Role In Dealing With Violent Street Crime: Principles, Questions, and Cautions.” The Annals of the American Academy of Political and Social Science (January, 1996) 543: 103- 115.
Hirschi, Travis and Rudisill, David. “The Great American Search: Causes of Crime 1876-1976.” The Annals of the American Academy of Political and Social Science (1976) 423: 14-22.
Hong, Nathaniel. “The Origin of American Legislation To Exclude and Deport Aliens For Their Political Beliefs, And Its Initial Review By the Courts.” Journal of Ethnic Studies (Summer 1990) 18(2): 1-36.
Hoover, J. Edgar. “Organized Protection Against Organized Predatory Crime: V. White Slave Traffic.” Journal of Criminal Law and Criminology (May/June 1933 – March/April 1934) 24: 475-482.
Hoover, J. Edgar. “The United States Bureau of Investigation In Relation To Law Enforcement.” Journal of Criminal Law and Criminology (May/June – September/October 1932) 25: 439-453.
Horowitz, David A. “An Alliance of Convenience: Independent Exhibitors and Purity Crusaders Battle Hollywood, 1920-1940.” The Historian (Spring 1997) 59(3): 553-572.
Irons, Peter H. “‘Fighting Fair’: Zechariah Chaffee, Jr., The Department of Justice, and the ‘Trial at the Harvard Club.’” Harvard Law Review (1981) 94(6): 1218-1236.
Johnson, Arthur M. “Antitrust Policy in Transition, 1908: Ideal and Reality.” The Mississippi Valley Historical Review (December, 1961) 48 (3): 415-434.
Kaiser, Frederick M. “Origins of Secret Service Protection of the President: Personal, Interagency, and Institutional Conflict.” Presidential Studies Quarterly (1988) 18(1): 101-127.
Kane, Francis F. “The Challenge of the Wickersham Deportations Report.” Journal of Criminal Law and Criminology (November/December 1932) 23: 575- 613.
Key, V. O., Jr. “State Legislation Facilitative of Federal Action,” The Annals of the American Academy of Political and Social Science (January 1940) 207:
Kinder, Douglas Clark and Walker, William O., III. “Stable Force In a Storm: Harry J. Anslinger and United States Narcotic Foreign Policy, 1930-1962.” Journal of American History (1986) 72(4): 908-927.
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Kinder, Douglas Clark. “Bureaucratic Cold Warrior: Harry J. Anslinger and Illicit Narcotics Traffic.” Pacific Historical Review (May 1981) 50(2): 169-191.
Kinsella, Nina. “County Jails and the Federal Government.” Journal of the American Institute of Criminal Law and Criminology (May/June 1933 - March/April 1934) 24: 428-439.
Lawson, V. Lonnie. “Public Advocacy and the Establishment of the Missouri State Highway Patrol.” Missouri Historical Review (1982) 76(4): 382-404.
Leff, Carol Skalnik and Leff, Mark H. “The Politics of Ineffectiveness: Federal Firearms Legislation, 1919-38.” Annals of the American Academy of Political and Social Science (May 1981) 455: 48-62.
Lefkowitz, Helen “Victoria Woodhull, Anthony Comstock, and Conflict Over Sex In the United States in the 1870’s.” Journal of American History (September 2000) 87(2): 403-434.
Lester, William M. “The Presidency and Non-Federal Government: FDR and the Promotion of State Legislative Action.” Presidential Studies Quarterly (1979) 9(2): 101-121.
Lippmann, Walter. “The Popular Dogma of Law Enforcement.” Yale Review (1929) 19: 1-13.
Long, Norton E., “Bureaucracy and Constitutionalism.” The American Political Science Review (September 1952) 46(3): 808-818.
McCormick, Richard L., “The Discovery That Business Corrupts Politics; A Reappraisal of the Origins of Progressivism,” American Historical Review (April 1981) 86(2): 247-274.
McCurdy, Charles W. “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903,” Business History Review (1979) 53: 304-342.
McGann, James G. “Academics To Ideologues: A Brief History of the Public Policy Research Industry.” PS: Political Science and Politics (1972) 24(4): 733- 740.
McWilliams, John C. “Unsung Partner Against Crime: Harry J. Anslinger and the Federal Bureau of Narcotics, 1930-1962.” Pennsylvania Magazine of History and Biography (1989) 113(2): 207-236.
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Miller, Wilbur R. “Federal Law Enforcement in the Mountain South, 1870 – 1900,” Journal of Southern History (May, 1989) 55(2): 195-216.
Monkkonen, Erik H. “A Disorderly People? Urban Order In the Nineteenth and Twentieth Centuries.” Journal of American History (1981) 68(3): 539-559.
Moore, Leonard J. “Historical Interpretations of the 1920’s Klan: The Traditional View and the Populist Revision.” Journal of Social History (Winter 1990) 24: 341-357.
Mott, Rodney L. “Uniform Legislation In the United States.” The Annals of the American Academy of Political and Social Science (January 1940) 207:128- 133.
Munz, Earl E. “A Plan For Control of Firearms.” Journal of Criminal Law and Criminology (September-October 1934) 25: 445-453.
Murphy, Paul L. “Sources and Nature of Intolerance in the 1920s.” Journal of American History (June 1964) 51(1): 60-76.
Niles, H. M. “A Federal-State-Municipal Cooperative Police System.” Journal of Criminal Law and Criminology (Nov-Dec 1934) 25: 686-687.
O’Reilly, Gregory W. and Drizin, Robert. “United States v. Lopez: Reinvigorating the Federal Balance by Maintaining the States’ Role as the “Immediate and Visible Guardians” of Security.” Journal of Legislation (1996) 22: 1-23.
O’Reilly, Kenneth. “A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security,” Journal of American History 69, no. 3 (December, 1982), 638-658.
O’Reilly, Kenneth. “Herbert Hoover and the F.B.I.” Annals of Iowa (1983) 47(1): 46-63.
O’Reilly, Kenneth. “The Roosevelt Administration and Black America: Federal Surveillance Policy and Civil Rights During the New Deal and World War II Years.” Phylon (1987) 48(1): 12-25.
Orman, John M. and Rudoni, Dorothy. “Exercise of the President’s Discretionary Power In Criminal Justice Policy.” Presidential Studies Quarterly (1979) 9(4): 415-427.
Padgett, John F. “Plea Bargaining and Prohibition In the Federal Courts, 1908- 1934.” Law & Society Review (1990) 24(2): 413-450.
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Potter, Ellen C. “The Problem of Women In Penal and Correctional Institutions.” Journal of the American Institute of Criminal Law and Criminology (May/June 1934 - March/April 1935) 25: 65-75.
Powers, Richard Gid, “The Attorney General and the G-Man: Hollywood’s Role in Hoover’s Rise to Power,” Southwest Review 62, no. 4 (Autumn, 1977): 329- 346, 330.
Powers, Richard Gid. “J. Edgar Hoover and the Detective Hero.” Journal of Popular Culture (1975) 9(2): 257-278.
Powers, Richard Gid. “One G-Man’s Family: Popular Entertainment Formulas and J. Edgar Hoover’s F.B.I.” American Quarterly (1978) 30(4): 471-492.
Reuter, Peter. “Eternal Hope: America’s Quest for Narcotics Control.” Public Interest (1985) (79): 79-95.
Rosen, Lawrence. “The Creation of the Uniform Crime Report: The Role of Social Science.” Social Science History (1995) 19(2): 215-238.
Routt, Garland C. “Interstate Compacts and Administrative Co-operation.” The Annals of the American Academy of Political and Social Science (January 1940) 207: 93-102.
Sanders, Paul H. “Federal Aid for State Law Enforcement.” Law and Contemporary Problems (October 1934) 1: 472-483.
Schofield, Kent. “The Public Image of Herbert Hoover In the 1928 Campaign.” Mid-America (1969) 51: 278-293.
Seretan, L. Glen. “The ‘New ‘ Working Class and Social Banditry in Depression America,” Mid- America (April-July, 1981) 63(2): 107-118.
Short, Raymond S. “Municipalities and the Federal Government.” The Annals of the American Academy of Political and Social Science (January 1940) 207:
Smith, Bruce. “Politics and Law Enforcement.” The Annals of the American Academy of Political and Social Science (September 1933) 169: 67-74.
Stolberg, Mary M. “Policing the Twilight Zone: Federalizing Crime Fighting During the New Deal.” Journal of Policy History (1995) 7(4): 393-415.
Stone, Donald C. “Reorganization For Police Protection.” Law and Contemporary Problems: Extending Federal Powers Over Crime (October 1934) 1(4): 451- 459.
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“The Attorney General and Presidential Power: A Franklin D. Roosevelt Symposium: Three Papers Observing the 100th Anniversary of His Birth.” (Roosevelt, James, “Staffing My Father’s Presidency: A Personal Reminiscence;” Karl Helicher, “The Education of Franklin D. Roosevelt;” Martin S. Sheffer, “The Attorney General and Presidential Power. Robert H. Jackson, Franklin D. Roosevelt, and the Prerogative Presidency”). Presidential Studies Quarterly (1982) 12(1): 48-65.
Thelen, David P. “Social Tensions and the Origins of Progressivism.” Journal of American History (September, 1969) 56(2): 323-341.
Theoharis, Athan G. “The FBI and the Politics of Surveillance, 1908-1985.” Criminal Justice Review (Autumn 1990) 15(2): 221-230.
Theoharis, Athan G. “The FBI, the Roosevelt Administration, and the ‘Subversive’ Press.” Journalism History (1993) 19(1): 3-10.
Theoharis, Athan. “FBI Wiretapping: A Case Study of Bureaucratic Autonomy.” Political Science Quarterly (1992) 107(1): 101-122.
Tone, Andrea. "Black Market Birth Control: Contraceptive Entrepreneurship and Criminality in the Gilded Age." Journal of American History (September, 2000) 87(2): 435-459.
Toy, Harry S. and Shepherd, Edmund E. “The Problem of Fugitive Felons and Witnesses.” Law and Contemporary Problems: Extending Federal Powers Over Crime. (October 1934) 1(4): 415-423.
Turnbaugh, Roy. “The FBI and Harry Elmer Banks, 1936-1944.” Historian 42(3): 385-398.
Urofsky, Melvin I. “State Courts and Protective Legislation during the Progressive Era: A Reevaluation.” Journal of American History (June 1985) 72(1): 63-91.
Vaughn, Stephen, “Spies, National Security, and the “Inertia Projector”: The Secret Service Films of Ronald Reagan.” American Quarterly (Autumn, 1987) 39(3) 335-380.
Vollmer, August. “Police Progress In the Past Twenty Five Years.” Journal of Criminal Law and Criminology (May-Jun 1933) 24: 161-175.
Vyhnanek, Louis. “‘Muggles,’ ‘Inchy,’ and ‘Mud’: Illegal Drugs In New Orleans During the 1920s.” Louisiana History (1981) 22(3): 253-279.
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Walcott, Charles. “Management Science and the Great Engineer: Governing the White House During the Hoover Administration.” Presidential Studies Quarterly (Summer 1990) 20: 557-579.
Wigmore, John. “Local Cooperation Against Organized Predatory Crime: Editorial.” Journal of Criminal Law and Criminology (March-April 1933) 25: 909-912.
Willebrandt, Mabel W. “U.S. Department of Justice: Its Work In Prosecuting Prohibition Cases.” Congressional Digest (October 1924) 4: 11.
Williams, David. “The Bureau of Investigation and Its Critics, 1919-1921.” Journal of American History (December 1981) 68: 561-579.
Williams, David. “They Never Stopped Watching Us”: FBI Political Surveillance, 1924-1936.” UCLA Historical Journal (1981) 2: 5-28.
Williams, T. Harry. “The Gentleman From Louisiana: Demagogue or Democrat.” Journal of Southern History (February, 1960) 26(1): 3-21.
Willrich, Michael. “The Two Percent Solution: Eugenic Jurisprudence and the Socialization of American Law, 1900-1930.” Law and History Review Spring (1998) 16(1): 63-111.
Periodical Articles
“A Commission with a Herculean Task.” Literary Digest (June 1, 1929) 101: 5-7.
“Against Lynching.” Commonweal (April 19, 1933) 17: 675.
“America’s Greatest Problem.” Nation (October 11, 1922) 115(2988): 351-352.
“Albany Crime Conference.” Commonweal (October 18, 1935) 22: 593-594.
“Another Lynching.” Commonweal (November 9, 1934) 21: 49.
“Combating Radicalism.” Nation (October 18, 1922) 115(2989): 402.
“Confusion Worse Confounded.” Nation (February 4, 1931) 132: 116-117.
“Daugherty and His Critics.” Independent (June 10, 1922) 118: 501-502.
“Daugherty, Aegis of Justice.” The Nation (March 26, 1924) 118(3064): 333-34.
“Four Aspects of the Wickersham Report.” New Republic (February 1929) 65(845): 311-313.
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“Government By Daugherty.” Nation (September 13, 1922) 115(2984): 243.
“Jail For Big Liquor Criminals Only.” Literary Digest (May 4, 1929) 101(5): 14.
“Mr. Coolidge Dismisses Mr. Daugherty.” Nation (April 9, 1924) 117(3066): 386.
“New Hoover Drive On Crime.” Literary Digest (5/10/30): 10.
“New Hoover’s War-Cry Against Crime.” Literary Digest (5/4/29).
“No War Over The I’m Alone.” Literary Digest (May 11, 1929) 101(6): 9.
“The Wickersham Report.” New Republic (January 22, 1930) 61: 237-238.
“The Wickersham Straddle.” New Republic (February 4, 1931) 65(845): 321.
“War Frauds and Daugherty’s Impeachment.” New Republic (October 11, 1922) 32(410): 162-163.
“What Is Wrong With Our State Department?” New Republic (February 20, 1929) 58(742): 5-6.
“Wickersham’s Service.” Current History (March 1936) 43: 669-670.
Bennett, James V. “American Prisons - Houses of Idleness.” Survey (April 1935) 61: 99-101.
Camp, E. A. “Lawlessness In Law Enforcement.” American Bar Association Journal (January 1932) 18: 866-68.
Center, Robert I. “The Halt of Racketeering.” Atlantic. (Oct 1937) 160: 447-457.
Chamberlain, J. D. “Federal Criminal Statutes 1934.” American Bar Association Journal (August 1934) 20: 501-503.
Copeland, George H. “Our Record of Crime That Arouses Hoover.” New York Times (4/28/29).
Cummings, Homer. “Progress Toward a Modern Administration of Criminal Justice In the United States; address, April 27, 1937. Washington, D.C.: U.S. Department of Justice, 1937? See American Bar Association Journal (May 1936) 22: 345-349.
Gaffney, T. St. J. “Immigration and the Crime Wave.” Commonweal (Sep 28, 1932) 16: 508.
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Gillard, John T. “Can Law Stop Lynching?” Commonweal (December 29, 1933) 19: 235-237.
Kuchuey, George. “Our Lawlessness That Alarms Hoover.” New York Times Magazine (5-26-29).
Lerrigo, Ruth A. “Prisoners Must Work.” Survey (July 1936) 72: 195-198.
Levinson, Edward. “Business Prefers Racketeers.” New Republic (Nov 27, 1935) 85: 69-71.
Marshall, Edward. “Uncle Sam Is the Worst Drug Fiend In the World.” Drugs: The Great Contemporary Issue Series, Set 1, Vol. 1. The New York Times, Publisher. New York: Arno Press, 1978
Mayer, Milton S. “Myth of the G Men.” Forum (September 1935) 94: 144-148.
McLellan, Howard. “Shoot To Kill? A Note On the G-man’s Methods.” Harper’s (Januaray, 1936) 172: 236-244.
Mels, Edgar. “Daugherty at the Bar.” The Nation (October 27, 1926) 126(3199): 423-424.
Mels, Edgar. “Harry Daugherty’s Past.” Nation (May 19, 1926) 126: 551-552.
Seagle, William. “The American National Police: The Dangers of Federal Crime Control.” Harper’s (November 1934) 169: 751-761.
Shaw, Roger. “A Couple of Cops.” Commonweal (January 31, 1936) 23: 372- 374.
Strout, Richard L. “Mr. Wickersham In Retrospect.” North American Review (November 1931) 232: 413-423.
Wilson, James Q. “Bugings, Break-ins, and the FBI.” Commentary (June1978) 65(6): 52-58.
Law Review and Law Journal Articles
“Federal Intervention Against Racketeering.” Columbia Law Review (January 1932) 32: 100-104.
“Interstate Crime Commission Makes Recommendations.” American Bar Association Journal (January 1936) 22: 37.
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“Recent Federal Criminal Statutes.” Detroit Law Review (November 1934) 5: 24- 40.
Anslinger, Harry J. “The Reason For Uniform State Narcotic Legislation.” Georgetown Law Journal (November 1932) 21: 52-61.
Ashdown, Gerald G. “Symposium: Federalism and the Criminal Justice System: Introduction: Macro and Micro Evaluation of the Federalization of Crime,” West Virginia Law Review (Spring, 1996) 98: 759-813.
Brickey, Kathleen F. “Criminal Mischief: The Federalization of American Criminal Law,” Hastings Law Journal (April 1995) 46:1135-1174.
Cushman, Robert E. “Studies In the Police Power of the National Government” (Reprint). [?]: Minnesota Law Review, Vol. III, Nos. 5, 6. and 7, April, May, and June, 1919, Vol. IV, Nos. 4 and 6, March and May, 1920.
Gardbaum, Stephen. “New Deal Constitutionalism and the Unshackling of the States.” University of Chicago Law Review (Spring 1997) 64(2): 483-566.
H., L. E. “Federal Control Over Crime, Scope of Power To Regulate Crime Under the Commerce Clause.” Michigan Law Review (January 1934) 32:378-387.
Irons, Peter H. “'Fighting Fair:' Zechariah Chafee, Jr. The Department of Justice and the 'Trial at the Harvard Club.” Harvard Law Review (1981) 94(6):1218- 1236.
Kaczorowski, Robert J. “Revolutionary Constitutionalism In the Era of the Civil War and Reconstruction.” New York University Law Review (1986) 61: 863- 940.
Keenan, Joseph B. “Bills Drafted By Department of Justice In Aid of Law Enforcement.” American Bar Association Journal (May 1934) 20: 306-308.
L., C.F. “Federal Judicial Control of State Criminal Practice.” Virginia Law Review (December 1935) 22: 192-199.
Meassonnier, Terrence N. "Neo-Federalism, Popular Sovereignty, and the Criminal Law." Akron Law Review (Spring, 1995) 29: 549-606.
Miller, Justin. “Crime Control As An Interstate Problem.” Washington University Law Quarterly (April 1937) 22: 382-390.
Miller, Justin. “Reciprocal Legislation In the Field of Criminal Law.” New York University Law Review (March 1937) 14: 330-340.
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Miller, Justin. “The Federal Government and the Crime Problem.” Oregon Law Review (April 1935) 14: 307-313.
Miller, Justin. “Crime Control As An Interstate Problem.” Washington University Law Quarterly (Spring, 1937) 22: 382-386.
Morse, Wayne L. “The Hoover Crime Commission.” Oregon Law Review (December 1929) 9: 56.
T., F. B. “Extensions of the ‘Local Criminal’ Concept.” Virginia Law Review (April 1937) 23: 692-701.
Tennyson, Alfred L. “Uniform State Narcotic Law.” Federal Bar Association Journal (October 1932) 1: 55-59.
Public Addresses
Cummings, Homer S. “Progress Toward A Modern Administration of Criminal Justice In the United States. An Address Delivered at the Annual Meeting of the North Carolina Conference for Social Service. Durham, North Carolina. April 27, 1936.” Washington: Government Printing Office, 1938.
Cummings, Homer S. “Coordination of Law Enforcement In the Movement Against Crime.” Vital Speeches (January 28, 1935) 1: 273-275.
Hoover, J. Edgar. “The Youth Problem In Crime.” Address Delivered by J. Edgar Hoover Before the Thirtieth Annual Convention of the Boys’ Clubs of America, Philadelphia, Pennsylvania, May 20, 1936. Press Release, Federal Bureau of Investigation, Department of Justice, Washington, D.C.
Hoover, J. Edgar. “Major Problems In Law Enforcement.” Address Delivered by J. Edgar Hoover Before the Convention of the International Association of Chiefs of Police at Atlantic City, New Jersey, July 9, 1935. Washington, D.C.: Government Printing Office, 1935.
Hoover, J. Edgar. “The Adventure of Scientific Crime Control.” Vital Speeches (July 1, 1937) 3: 559-562.
Hoover, J. Edgar. “Address of Hon. John Edgar Hoover, director, Federal Bureau of Investigation, United States Department of justice. Before the convention of the International association of chiefs of police at Atlantic City, New Jersey, July 9, 1935.” Washington, U.S. Government Printing Office, 1935.
Hoover, J. Edgar. “Progress In Crime Control.” Address by J. Edgar Hoover. Broadcast from Miami, Florida, On Friday, December 16, 1938 Over the
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network of the Columbia Broadcasting System. Washington, D.C.: Government Printing Office, 1939.
McAdoo, William Gibbs. “Prohibition, Nullification and Lawlessness. An Address Delivered at the Midwinter Meeting of the Ohio State Bar Association, Toledo, Ohio, January 28, 1927.” Washington: Government Printing Office, 1927.
Unpublished Dissertations
Bacon, Selden Daskam. “The Early Development of American Municipal Police: a Study of the Evolution of Formal Controls In a Changing Society.” Dissertation (Ph.D.): Yale University, 1939.
Deok-Ho, Kim. “’A House Divided’: The Wickersham Commission and National Prohibition.” Dissertation (Ph.D.): State University of New York at Stony Brook, 1992.
Mazza, David Lawrence. “Homer S. Cummings and Progressive Politics From Bryan Through Wilson, 1896-1925.” Dissertation (Ph.D.): St. John’s University, 1978.
Potter, Raymond Joseph. “Royal Samuel Copeland, 1868-1938: A Physician In Politics.” Dissertation (Ph.D.): Western Reserve University, 1967.
Conference Papers
Meador, Daniel J. “The President, the Attorney General, and the Department of Justice. A Paper.” Conference at the White Burkett Center of Affairs, University of Virginia, January 4-5, 1980.
Miscellaneous Sources
Cummings, Homer S., Attorney General of the United States. “We Can Prevent Crime.” New York: MacFadden Publications, Inc., 1937.
International Association of Chiefs of Police. “The Police Yearbook. International Association of Chiefs of Police 1936-37, Containing the Proceedings of the Forty-third Annual Convention held at Kansas City, Missouri, September 21- 24, 1936.” Chicago: International Association of Chiefs of Police, 1937.
International Association of Chiefs of Police. Special Bulletin (September 1940). “Study of State Legislation Regulating Sale and Possession of Firearms.” Chicago: International Association of Chiefs of Police, 1940.
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McNutt, Paul V. “Fitting Treatment To the Criminal: Parole In Our Society.” Vital Speeches 2: 784-787.
National Crime Commission. A Full Report of the Proceedings of the National Conference On the Reduction of Crime Called By the National Crime Commission, New Willard Hotel, Washington, D.C., November 2nd and 3rd, 1927. Hon. Newton D. Baker, Chairman of Conference. [sn.]: [sp.], 1927.
Scheiber, Harry N. “From The New Deal To the New Federalism, 1933-1983,” in The New Deal Legacy and the Constitution: A Half Century Retrospect, 1933- 1983. Proceedings of a Conference at Boalt Hall School of Law, University of California, Berkeley, April 16, 1983. Berkeley: University of California, 1984.