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. iv 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. v 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. vi 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.