Statement of Senator Patrick Leahy, Ranking Member, at Criminal Justice Oversight Subcommittee Hearing on "Fugitives: The Chronic Threat to Safety, Law and Order"

June 22, 2000

As a former prosecutor, I am well aware that fugitives from justice are an important problem and that their capture is an essential function of law enforcement. According to the FBI, nearly 550,000 people are currently fugitives from justice on federal, state, and local felony charges combined. This means that there are almost as many fugitive felons as there are citizens residing in my home state of Vermont.

The fact that we have more than one half million fugitives from justice, a significant portion of whom are convicted felons in violation of probation or parole, who have been able to flaunt courts order and avoid arrest, breeds disrespect for our laws and poses undeniable risks to the safety of our citizens. We must do better. S. 2761, the Leahy-Kohl "Capturing Criminals Act of 2000," which I introduced yesterday, will provide additional tools and resources to our federal law enforcement agencies to pursue and capture fugitive felons on both federal and state charges. Our federal law enforcement agencies should be commended for the job they have been doing to date on capturing federal fugitives and helping the states and local communities bring their fugitives to justice. The U.S. Marshals Service, our oldest law enforcement agency, has arrested over 120,000 federal, state and local fugitives in the past four years, including more federal fugitives than all the other federal agencies combined. In prior years, the Marshals Service spearheaded special fugitive apprehension task forces, called FIST Operations, that targeted fugitives in particular areas and was singularly successful in arresting over 34,000 fugitive felons.

Similarly, the FBI has established twenty-four Safe Streets Task Forces exclusively focused on apprehending fugitives in cities around the country. Over the period of 1995 to 1999, the FBI's efforts have resulted in the arrest of a total of 65,359 state fugitives.

The Capturing Criminals Act would help our law enforcement agencies keep the pressure on fugitives by authorizing the Attorney General to establish regional Fugitive Apprehension Task Forces, to be coordinated by the United States Marshals Service; authorizing administrative subpoenas for use in obtaining records relevant to finding federal and state fugitives; and, finally, requesting a comprehensive report on the administrative subpoena authorities held by federal agencies, which vary in scope, enforcement and privacy safeguards.

"Administrative subpoena" is the term generally used to refer to a demand for documents or testimony by an investigative entity or regulatory agency that is empowered to issue the subpoena independently and without the approval of any grand jury, court or other judicial entity. I am generally skeptical of administrative subpoena power. Administrative subpoenas avoid the strict grand jury secrecy rules and the documents provided in response to such subpoenas are, therefore, subject to broader dissemination. Moreover, since investigative agents issue such subpoenas directly, without review by a judicial officer or even a prosecutor, fewer "checks" are in place to ensure the subpoena is issued with good cause and not merely as a fishing expedition.

Nonetheless, unlike initial criminal inquiries, fugitive investigations present unique difficulties. Law enforcement may not use grand jury subpoenas since, by the time a person is a fugitive, the grand jury phase of an investigation is usually over. Use of grand jury subpoenas to obtain phone or bank records to track down a fugitive would be an abuse of the grand jury. Trial subpoenas may also not be used, either because the fugitive is already convicted or no trial may take place without the fugitive.

This inability to use trial and grand jury subpoenas for fugitive investigations creates a disturbing gap in law enforcement procedures. Law enforcement partially fills this gap by using the All Writs Act, 28 U.S.C. § 1651(a), which authorizes federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The procedures, however, for obtaining orders under this Act, and the scope and non-disclosure terms of such orders, vary between jurisdictions.

Thus, authorizing administrative subpoena power will help bridge the gap in fugitive investigations to allow federal law enforcement agencies to obtain records useful for tracking a fugitive's whereabouts. The Leahy-Kohl Capturing Criminals Act makes clear that the approval of a court remains necessary to obtain an order for nondisclosure of the subpoena and production of the requested records to the subscriber or customer to whom the records pertain.

I am certainly not alone in recognizing the problem this nation has with fugitives from justice. Senators Thurmond and Biden have introduced the "Fugitive Apprehension Act," S. 2516, specifically to address the difficulties facing law enforcement in this area. I commend both my colleagues for their leadership. While I agree with the general purposes of S. 2516, aspects of that bill would be problematic. I look forward to working with my colleagues on the Judiciary Committee to resolve the differences in our bills.

Without detailing all of the differences in the bills, let me provide some examples. As introduced, S. 2516 would limit use of an administrative subpoena to those fugitives who have been "indicted," which fails to address the fact that fugitives flee after arrest on the basis of a "complaint" and may flee after the prosecutor has filed an "information" in lieu of an indictment. The Leahy-Kohl "Capturing Criminals Act," by contrast, would allow use of such subpoenas to track fugitives who have been accused in a "complaint, information or indictment."

In addition, S.2516 requires the U.S. Marshal Service to report quarterly to the Attorney General (who must transmit the report to Congress) on use of the administrative subpoenas. In my view, while a reporting requirement is useful, the requirement as described in S. 2516 is overly burdensome and insufficiently specific. The Leahy-Kohl "Capturing Criminals Act" would require the Attorney General to report for the next three years to the Judiciary Committees of both the House and Senate with the following information about the use of administrative subpoenas in fugitive investigations: the number issued, by which agency, identification of the charges on which the fugitive was wanted and whether the fugitive was wanted on federal or state charges.

Although S. 2516 outlines the procedures for enforcement of an administrative subpoena, it is silent on the mechanisms for both contesting the subpoena by the recipient and for delaying notice to the person about whom the record pertains. The Leahy-Kohl "Capturing Criminals Act" expressly addresses these issues.

This legislation will help law enforcement – with increased resources for regional fugitive apprehension task forces and administrative subpoena authority – bring to justice both federal and state fugitives who, by their conduct, have demonstrated a lack of respect for our nation's criminal justice system. I look forward to working with my colleagues to ensure swift passage of this legislation.