M. Elaine Nugent-Borakove is the director of APRI’s Office of Research & Evaluation. The American Prosecutors Research Institute is the research and development division of the National District Attorneys Association. This project was supported by Grant No. 2003-IJ-CX-1025 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this article are those of the author and do not necessarily represent the official position of the U.S. Department of Justice.

The Local Prosecutor and Homeland Security: Is There a Role to be Played?

By M. Elaine Nugent-Borakove

The legal landscape of America has changed dramatically in response to the events of September 11, 2001. The United States Congress enacted the U.S.A. Patriot Act of 2001 (P.L. 107-56), which greatly enhanced the ability of the federal government to combat terrorism by strengthening criminal laws and the tools used to investigate them. State legislatures have also responded by re-evaluating existing statutes and designing new ones to combat terrorism.

Between September 2001 and October 2003, 45 states and the District of Columbia passed laws specifically related to terrorism. The passage of these laws resulted in the creation of 144 new state offenses and amendments to 167 existing statutes (Nugent et al., 2005). A statutory review of these newly created and amended laws found that they generally fall into one of four categories:

• Statutes that criminalize precursor crimes (such as identity theft, money laundering, falsified documents) committed in support of terrorism planning and action;
  
  
• Statutes directed at threats, hoaxes, and false reports;
  
  
• Statutes that punish actual incidents of terrorism such as poisoning of food/water, using/possessing weapons of mass destruction; causing a catastrophe, using the Internet or telecommunications to commit terrorism, and damaging highways or bridges;
  
  
• Statutes designed to enhance the ability to investigate and prosecute incidents of terrorism.

The majority of newly created offenses fell into the last three categories. Most of the amended statutes added sentencing enhancements to offenses related to precursor crimes such as identity theft, possession of counterfeit/ fraudulent documents, racketeering/money laundering, use of commercial transportation in the commission of a felony, and disorderly conduct at an airport. The majority of these precursor crimes have existed in state criminal codes for years. It is the motivation for the commission of these crimes that characterize them as “precursors” to terrorism. Regardless of motivation, traditionally these crimes have fallen under the state’s authority to prosecute.

It is generally accepted that jurisdiction over crimes that are organized, supported, and committed by international groups will fall under the purview of the federal government (Stuntz, 2002; Donohue & Kayyem, 2002); yet the passage of terrorism laws at the state level creates a gray area with regard to precursor crimes.

State and local prosecutors are keenly aware that they have a role to play in the national strategy on homeland security (NDAA, 2002). Nonetheless, there has been ambiguity about the shape such a role might take. The American Prosecutors Research Institute, with funding from the National Institute of Justice, conducted an exploratory study to assess what the different roles might be that local prosecutors would play in homeland security.

Based on a survey of the 112 largest prosecutors’ offices in the country, APRI found that nearly 60 percent participated in task forces but only a small few (16 percent) had involvement in the prosecution of precursor crimes. APRI also identified five prosecutors’ offices for intensive case study: Bucks County, Pennsylvania; Franklin County, Ohio; Los Angeles County, California; Monmouth County, New Jersey; and Queens County, New York.

Types of Prosecutorial Roles in Homeland Security

The study revealed an interesting pattern with regard to the roles chosen by the local prosecutors. Prosecutors in jurisdictions that were thought to have little, if any, threat of terrorism, only provided support to homeland security efforts. In target-rich jurisdictions, the role was much more proactive and extensive thereby suggesting a continuum of involvement based on the perceived threat of terrorism.

There were three primary roles that emerged from the study:

• Support only role
• Dual action/support role
• Action role

The Support Role
Generally, the support role is characterized by membership or participation in a terrorism task force, provision of assistance upon request, and review/sharing of information brought to the attention of the prosecutor’s office.

Only one of the offices studied performed a support role exclusively. In this office, where there were perceived to be few terrorist targets, the prosecutor assigned staff to attend various task force meetings and cross-designated the office’s investigators as U.S. marshals to help support their enforcement and investigation efforts. The basic premise of this approach was that the office could help federal efforts through information sharing and consultation on criminal prosecutions. The prosecutor also meets with the U.S. Attorney’s Office on an as-needed basis to discuss the anti-terrorism efforts in the county. Given that more than 90 percent of prosecutors’ offices represent jurisdictions of less than 250,000, it is likely that this is the most common role for local prosecutors.

The Dual Action/Support Role
The dual action/support role includes all the activities of the support role but also includes obtaining security clearances for prosecution staff who attend terrorism task force meetings, coordinating information exchange between local and federal law enforcement, prosecution of cases as requested by the U.S. Attorney’s Office, and some policy or organizational changes to help in the response to terrorism. The action role is one in which the prosecutor’s office is involved as a partner with federal prosecutors and law enforcement, there is active involvement in intelligence gathering and case development and a significant commitment of resources to the area of terrorism. Precursor crimes are prosecuted at the local level as are some terrorism-related offenses, and there are special policies in place for the screening and processing of precursor crimes.

Two of the offices studied were found to have a dual action/support role. In one of these offices, precursor crimes or other cases suspected of being related to terrorism that are referred by local police to the local prosecutor are carefully screened by the gang unit, specifically trained for intensive intelligence gathering and investigation. Cases believed to have ties to terrorism are presented to the U.S. attorney and at task force meetings for discussion. The prosecutor’s office also provides support for the investigation of suspected terrorists and precursor crimes related to terrorism. For example, the local prosecutor’s office worked closely with the U.S. Attorney’s Office, the Federal Bureau of Investigation (FBI), and state and local law enforcement to investigate and arrest a truck driver who threatened to blow up the Brooklyn Bridge. The office also assisted with the prosecution of a city resident who threatened to blow up a local shopping mall.

In the second dual action/support office, the role is one of a conduit of information among various agencies involved in homeland security. The office has created a terrorism coordinator position, whose responsibilities include passing information along to state and federal investigative agencies. Information returned to the coordinator, because it will not be handled at the federal level, may be prosecuted at the local level. In addition, through this coordinator position, information is gathered and entered into a statewide database that can be used to identify offending patterns and cross-referenced against similar information for other sources.

The Action Role
The last role, the action role, was observed in two of the offices studied. Both offices were involved in active case development and prosecution. In one office, the prosecutor assigned 11 investigators and three prosecutors to work with various terrorism task forces to investigate and prosecute precursor crimes. The investigators work along side federal law enforcement to actively develop and investigate terrorism and terrorism-related cases. As cases are developed, the prosecutor’s office and the U.S. Attorney’s Office hold meetings to discuss the advantages and disadvantages of prosecuting the cases locally or federally. Many of the precursor crimes, related to the sale of counterfeit merchandise that may be used to fund terrorism, were prosecuted successfully at the local level.

The other prosecutor’s office created several of its own task forces to address precursor crimes related to falsification of identity documents and production of counterfeit identity documents. In one such effort, the review of the motor vehicle department’s procedures for the replacement of out-of-state licenses resulted in the identification of several suspicious activities and persons. The operation yielded 420 arrests, seizure of 2,000 documents, and the confiscation of equipment being used to produce fraudulent licenses and identification cards. Another operation focused on applications for taxi and limousine licenses saw similar success. The prosecutor’s office found a number of inconsistencies and patterns that led to the arrests of 500 people suspected of falsifying their identification in order to obtain taxi/limousine licenses. Finally, a review of applications for security badges at the airports in the jurisdiction found that 127 people had used falsified or fraudulent identification documents to obtain their security badges. The prosecutor filed criminal charges in state court against 97 defendants and had successfully prosecuted 35 of those cases at the time of the study.

It is likely that most prosecutors’ offices in the country will opt for a more supportive role in homeland security because they simply do not have the resources to devote significant personnel time to the issue or there simply is not enough of a risk to warrant a more proactive role. On the other hand, it can be argued that prosecutors are most likely to have the greatest impact, and thereby be of the most assistance in the overall response to terrorism, by focusing on precursor crimes. With the exception of suspects already under federal surveillance, it is likely that precursor criminal activity will be identified initially at the local level.

Part of the challenge for prosecutors in addressing precursor activity that is related to terrorism as opposed to being a “routine” criminal act lies in identifying patterns of offending that seem out of the ordinary or by looking for behavioral clues that might indicate involvement in terrorism. For example, one of the prosecutor’s offices studied noticed a pattern of burglaries in which night vision goggles and guns with telescopes were being stolen from sporting goods stores. The activity seemed unusual and was reported to the U.S. Attorney’s Office for further discussion. At the time of the study, the investigation was on-going to determine if there was a connection to terrorism.

Defining what the behavioral clues are that might indicate a connection to terrorism is far more difficult. There is much work to be done in this area. Some clues that are being used now might include a defendant who has no source of income but lives comfortably, a defendant who has multiple passports and identification cards, or money trails from illegal operations that lead to questionable organizations. There may, however, be many other clues that have yet to be identified through research or practice, and in fact, it is likely the experience of the law enforcement officer or the prosecutor that will determine how likely such clues are going to be “picked up.”

It is clear from the research that despite the intense focus on the federal response to terrorism, there are at least three roles that local prosecutors can undertake to help bolster homeland security. It is important to note, however, that in all the offices studied, the different roles included a component of collaboration with the U.S. Attorney’s Office. Nearly every commission report examining homeland security responses points to the need for improved collaboration between federal and state law enforcement and prosecutors. Local prosecutors recognize that this type of collaboration can be a significant challenge in that information-sharing may be only one-way; however, it is not such a challenge that the need for local involvement should be negated or dismissed.

References

Donohue, L.K. and Kayyem, J. N. 2002. Federalism and the Battle over Counterterrorist Law: State Sovereignty, Criminal Law Enforcement, and National Security. Studies in Conflict & Terrorism 25: 1-18.

National District Attorneys Association. 2002. Anti-Terrorism Policy. Adopted by the Board of Directors, March 23, 2002.

Nugent, M.E., Johnson, J.L., Bartholomew, B., Bromirski, D. 2005. Local Prosecutors Response to Terrorism: Special Topics Monograph. Alexandria: American Prosecutors Research Institute.

Stuntz, W. J. 2002. Terrorism, Federalism, and Police Misconduct. Harvard Journal of Law & Public Policy 25(2): 665-679.