U.S. Justice Department

IDENTIFICATION: Federal cabinet-level department that investigates, prosecutes, and punishes offenses against the United States, makes national criminal justice policy, and provides financial, training, and other forms of support to state and municipal law-enforcement agencies

SIGNIFICANCE: The largest and most influential law-enforcement entity in the U.S. criminal justice system, the federal Justice Department serves as a link between the court system and the executive branch of the federal government. It also brings suit against violators of federal law and defends the U.S. government against claims brought by persons, organizations, and local and state governments.

In 1789, the first U.S. Congress laid the foundations of the federal justice system by creating both the federal court system and the office of U.S. attorney general. The legislation creating the office of attorney general empowered the holder of that office to appear on behalf of the United States in Supreme Court cases in which the United States was concerned and to give advice and legal opinions when required by the president or heads of any of the executive departments.

Working with only small staffs, the attorneys general carried out their duties without the aid of a bureaucratic department until 1870, when Congress established the Department of Justice. From that modest beginning, the department grew to its twenty-first century position as the largest investigative, prosecutive, and punishment entity in the United States. In 2003, its budget exceeded $22 billion, and it employed almost 106,000 persons—a figure almost exactly the same as the entire population of Washington, D.C., in 1870.

Organization

The modern Justice Department contains dozens of offices, sections, agencies, and other entities that carry out a broad variety of functions related to the criminal justice system. Its law-enforcement agencies include the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). These agencies investigate crimes against the United States and threats to national security. They also coordinate with state and local law-enforcement offices and provide training and expertise in nonfederal cases.

The Justice Department also is responsible for conducting all litigation—except as otherwise authorized by statute—in which the United States is a party. Its lawyers include U.S. attorneys and assistant U.S. attorneys, who represent the federal government within assigned districts, and so-called “main justice” prosecutors. Based in Washington, D.C., these prosecutors travel outside the national capital to handle cases throughout the nation. They present criminal matters to federal grand juries and prosecute criminal cases in federal court.

Justice Department lawyers also appear on behalf of the United States in appellate courts and before the U.S. Supreme Court. They may also testify in trials to present the government’s views in cases to which the United States itself is not a party. They also handle international criminal matters on behalf of federal, state, or municipal governments and in cases in which foreign fugitives flee to the United States to avoid prosecution in other countries. In U.S. extradition cases, Justice Department lawyers represent the governments of the foreign nations involved.

The U.S. Marshals Service protects federal courts, parties to criminal cases, witnesses, and criminally used or obtained property forfeited to the United States. The department’s Bureau of Prisons maintains custody of persons convicted of crimes against the United States. Finally, various offices within the Justice Department provide training, technical assistance, financial aid, and coordination to state and local investigative and prosecution offices.

In a series of statutes, Congress specifically authorized the positions of attorney general, deputy attorney general, assistant attorney general, solicitor general, ten assistant attorneys general, and ninety-three U.S. attorneys. Congress also created the investigative, protective, and prison entities and directed that they be integrated into the Justice Department.

Distinctions Between Federal and State Offenses

Under the nation’s federal system of government, responsibility to enforce the law is divided between the federal, state, and local governments. A curious and primary distinction between the federal and state governments is that whereas the powers of the former are few and narrowly defined, those of the latter are both numerous and indefinite. The federal Justice Department can prosecute only offenses that violate federal law, such as statutes enacted by Congress. Some crimes are uniquely federal, some are uniquely subject to state jurisdiction, and some are concurrently proscribed by both state and federal law.

Uniquely federal crimes, which are prosecuted and punished only by the U.S. Justice Department, include such offenses as counterfeiting U.S. currency, treason, espionage and other national security related offenses, immigration fraud, federal tax offenses, federal program fraud, and other crimes that are directed solely against the interests of the national government. The Justice Department may also prosecute crimes within “the special maritime and territorial jurisdiction of the United States,” which includes federal enclaves such as Army bases, as well as places and vessels outside the territorial jurisdiction of any state.

Criminal acts that are subject to the concurrent criminal jurisdiction of both state and federal authorities include the manufacture and distribution of drugs; kidnapping; gun offenses and other crimes that also involve interstate activity; frauds in which instrumentalities of interstate or foreign commerce are used; and other crimes that harm federally protected institutions, such as robberies of banks that are federally insured.

The range of offenses that are exclusively within the reach of state authorities and thus not subject to federal prosecution is large. They include purely regional crimes that have no connections with interstate or foreign commerce or do not implicate instrumentalities or other legitimate interests of the federal government. Murder, for example, is ordinarily not a federal crime, but it may be prosecuted by the Justice Department when its victims are federal government officials or foreign diplomats or when it occurs on military bases or other federal property.

In the late twentieth century, federal law criminalized a broad range of conduct that traditionally had been addressed by state laws, in part because of congressional dissatisfaction with local prosecution efforts and state-ordered sentences on convicted offenders. The U.S. Supreme Court’s 1995 decision in United States v. Lopez reinvigorated federal principles and rebuffed federal prosecutions of crimes that are subject to state jurisdiction and do not reflect constitutionally sanctioned federal interests.

Authority for the prosecution of federal offenses resides primarily with the U.S. attorneys, who are distributed throughout the country, and with “main justice,” the assistant attorneys general who head the criminal divisions and their attorneys. Prosecutive authority for tax, antitrust, and environmental matters is assigned to other divisions within the Justice Department. Those divisions are also headed by presidentially appointed assistant attorneys general.

The Attorney General

The attorney general ordinarily does not appear personally in pending cases, though it is not unusual for one to argue a case before the U.S. Supreme Court. However, attorneys general and their subordinates have the power to set national priorities and to issue guidelines to Justice Department prosecutors on a broad variety of litigation matters. Attorneys general must also approve the issuance of federal grand jury or trial subpoenas.

Because attorneys general are political appointees who serve at the pleasure of the presidents, it is an inherent conflict of interest to give the attorney general responsibility for investigating and prosecuting the president or other top executive branch officials. Accordingly, Congress created independent counsels, who are appointed by judges when it is necessary to conduct politically sensitive investigations. On June 30, 1999, the independent counsel statute expired, and investigations and prosecutions of top executive branch officials once again became the responsibility of the attorney general. In practice, attorneys general appoint “special prosecutors” to conduct such investigations or prosecutions when the attorney general cannot do so.

United States Attorneys

Ninety-three U.S. attorneys are stationed throughout the United States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands. Each U.S. attorney is appointed by the president, with the U.S. Senate’s advice and consent, and serves at the pleasure of the president. Each attorney serves within one of the ninety-four congressionally established judicial districts, with the exception that a single U.S. attorney serves for the District of Guam and the District of the Northern Mariana Islands. The U.S. attorneys are the chief federal law-enforcement officers in their own districts. By law, the U.S. attorneys and assistant U.S. attorneys are empowered to prosecute criminal cases brought by the federal government.

U.S. attorneys have considerable discretion in determining priorities and in deciding whether to present cases to federally impaneled grand juries and, when indictments are returned, to prosecute cases. They also have broad discretion in choosing and pursuing investigative and litigation techniques. However broad though, this discretion is not unlimited. The attorneys general set national priorities and retain the right to approve certain litigation and investigative decisions of the U.S. attorneys. Main justice must authorize the initiation of criminal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 . Main justice must also approve requests for judicial orders conferring immunity on prospective witnesses when judicially conferred immunity is necessary to compel the witnesses to give evidence that might be self-incriminatory. U.S. attorneys may not appeal district court decisions without approval from the solicitor general in the Justice Department.

Congress can also restrict the discretion of U.S. attorneys by requiring approval by main justice of certain actions. For example, the federal wiretap statute requires that U.S. attorneys who seek judicial orders authorizing wiretaps or other electronic surveillance receive authorization from main justice.

Criminal Division and Other Enforcement Divisions

The Criminal Division of the Justice Department also has significant prosecution authority. It comprises multiple sections, with particular responsibility for prosecuting a variety of offenses including narcotics, organized crime, terrorism, money laundering, white-collar fraud, bribery of public officials and other forms of public corruption, computer crimes, criminal copyright offenses, violation of child exploitation and obscenity statutes, certain violent crimes, and alien smuggling.

The Criminal Division also operates as the central authority in international treaty matters concerning criminal law enforcement. Treaties for extradition and mutual legal assistance (the process by which the judicial or prosecution authorities in one country seek assistance in securing important evidence located in another country) generally are negotiated by attorneys of the Department of State and the Criminal Division. After treaties are negotiated, ratified, and entered into force, the Criminal Division makes and receives international requests for extradition or mutual legal assistance, even when fugitives or evidence are sought by state or local prosecutors.

Although the primary responsibility for criminal prosecutions lies within the Criminal Division, other litigation divisions within the department have limited criminal law-enforcement authority. For example, the Antitrust Division prosecutes criminal antitrust violations. The Tax Division prosecutes major tax offenses, such as the promotion of fraudulent tax shelters, and is also involved in the prosecution of terrorist financing cases. The Civil Rights Division prosecutes slavery, voter fraud, and criminal civil rights violations. The Environmental and Natural Resources Division prosecutes environmental offenses, such as criminal violations of the Clean Air Act of 1970.

The Federal Bureau of Investigation

Several entities under the umbrella of the Justice Department have exclusively or primarily investigative functions. The FBI, the DEA, and the ATF are the primary investigative agencies. In addition, the department participates in international criminal investigations and cooperation, primarily through Interpol.

Established as the Bureau of Investigation in 1908, the Federal Bureau of Investigation has the broadest responsibility of all federal investigative agencies, with authority to investigate more than 180 kinds of federal crimes. During the first years of the twenty-first century, its official top priority was counterterrorism. The FBI is also the primary domestic agency responsible for the investigation of espionage, treason, and other related national security matters. In addition, the FBI has responsibility for investigating cybercrime and cyber-based attacks, public corruption, civil rights offenses, transnational and national organized crime, white-collar crime, and significant violent crime in violation of U.S. law.

The FBI has other criminal justice functions as well. For example, it maintains a computerized database of fingerprint records in its Integrated Automated Fingerprint Identification System, whose data are available to other federal and state law-enforcement agencies. Its profiling unit and laboratories also assist in federal and state investigations and prosecutions. Thomas Harris’s novel Silence of the Lambs (1988) and novels by author Patricia Cornwell have portrayed the profiling unit in some detail.

The FBI Academy in Quantico, Virginia, trains federal, state, local, and international police officers. The FBI’s National Crime Information Center (NCIC) maintains databases containing a wide variety of information; its databases are accessed approximately two million times a day by federal, state, and local police agencies.

The director of the FBI is appointed by the president, with Senate approval, for a term of ten years. His or her resignation can, however, be requested by the sitting president. FBI agents are based in fifty-six field offices and four hundred satellite offices within the United States, and FBI legal attachés (called legats) in forty-five offices outside the United States support investigations and operations around the world.

U.S. Marshals Service

The Justice Department’s U.S. Marshals Service is the oldest of the U.S. law-enforcement agencies. The Marshals Service was created to provide security and protection for federal courts. The service now has myriad law-enforcement functions. Its protective functions include protection of courthouses and courtrooms and, as necessary, federal prosecutors and judges. It also transports and maintains the security of federal witnesses and prisoners. It runs the federal Witness Protection Program, which protects, relocates, and provides new identities to people—and sometimes their family members—who are in jeopardy on account of their testimony in criminal trials. Between 1970 and 2022, more than 19,000 people were enrolled in the program.

The U.S. Marshals Service also has a significant police function. It executes arrest warrants issued for fugitives who are accused of violating federal laws. In fact, federal marshals arrest more people than all other federal law-enforcement agencies combined. The service also is responsible for apprehending foreign fugitives sought for extradition and believed to be in the United States. It also is the primary agency for tracking U.S. fugitives charged by federal, state, or regional authorities when those fugitives are believed to have fled to points outside the United States.

The Marshals Service is responsible for the housing and transportation of persons charged with federal crimes (from point of arrest to the date of sentencing) and of internationally wanted fugitives. It houses more than forty-seven thousand federal prisoners (prior to conviction and sentencing) each day, in federal facilities or, through contract arrangements, in jails maintained by state and local authorities. It operates the Justice Prisoner and Alien Transportation System (JPATS), which transports prisoners and criminal aliens between judicial districts and correctional institutions and even to and from foreign countries. It manages and disposes of properties acquired by criminals through illegal activities after those properties have been seized and forfeited to the United States.

Other Investigative and Protective Agencies

The Drug Enforcement Administration enforces U.S. laws concerning controlled substances. It investigates organizations and persons involved in the importation, growing, manufacture, and distribution of controlled substances in the United States. DEA agents are based throughout the United States as well as abroad, where they support investigations and international operations.

Formerly a branch of the U.S. Treasury Department, the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) enforces federal firearms laws and investigates violent crimes involving guns and explosives. The ATF also investigates offenses involving the smuggling of contraband untaxed alcohol and tobacco, but they form a small part of its overall work.

The National Central Bureau (NCB) of Interpol, the International Criminal Police Organization that is headquartered in Lyon, France, is the U.S. point of contact for international law enforcement. The NCB facilitates U.S. participation in international law-enforcement cooperation by transmitting requests and information to and from Interpol member states and domestic law-enforcement agencies and coordinating information in international investigations. Among other key functions, Interpol facilitates efforts to locate internationally wanted fugitives and property that has been stolen and transported across national borders.

U.S. Bureau of Prisons

Offenders convicted of federal crimes and sentenced to prison terms are remanded to the custody of the Bureau of Prisons (BOP). The bureau has wide discretion to designate their places of imprisonment and then to regulate the conduct of the prisoners within that penal institution.

Bibliography

Clayton, Cornell C. The Politics of Justice: The Attorney General and the Making of Legal Policy. Armonk, N.Y.: M. E. Sharpe, 1992.

Cole, George F., and Christopher Smith, and Christina DeJong. American System of Criminal Justice. 16th ed. Cengage, 2018.

Earley, Pete, and Gerald Shur. WITSEC: Inside the Federal Witness Protection Program. New York: Bantam Books, 2002.

Johns, Margaret, and Rex R. Perschbacher. The United States Legal System: An Introduction, 4th ed Durham, N.C.: Carolina Academic Press, 2016.

Kessler, Ronald. The Bureau: The Secret History of the FBI. New York: St. Martin’s Press, 2002.

Littman, Jonathan. The Fugitive Game. New York: Little, Brown, 1996.

"Nobody Sees the Job." U.S. Marshals Service, 2024, www.usmarshals.gov/what-we-do/witness-security. Accessed 5 July 2024.

Reebel, Patrick A., ed. Federal Bureau of Investigation: Current Issues and Background. New York: Nova Science, 2002.

Stroud, Carsten. Deadly Force: In the Streets with the U.S. Marshals. New York: Bantam Books, 1996.