INS Insecurity About Homeland Security

W A S H I N G T O N, Jan. 10, 2003 -- An INS official was kind enough to provide me with a copy of an internal Customs Service e-mail that contains a putative schedule for the merger of various agencies into the new Department of Homeland Security.

INS folks were disconcerted to read therein that on March 1 the first order of business would be "Reorganization takes effect, transfer Coast Guard, Customs, TSA, INS, FPS, ODP, and FLETC to DHS," but the very next item is "Abolish INS."

Of course the legislation that created the Department of Homeland Security, or DHS, had also decreed that the Immigration and Naturalization Service would not only be transferred, but also would be split into two separate agencies — one for enforcement and the other for services. The agency that historically has been considered the most inept in town would theoretically thereby become more manageable. But officials had not understood that INS would actually be "abolished."

Worse, to their minds, was that after first being split between the DHS Bureau of Border Security and Bureau of Citizenship and Immigration Services, according to the Customs e-mail, on July 1 the remaining enforcement functions of INS would be completely swallowed up by Customs: "Transfer Border Patrol and Immigration Inspections functions from Bureau of Border Security to Customs."

It's one thing to be jettisoned by the Justice Department, split in two, and subsumed into a brand-new department. But to have the smaller Customs Service completely take over all Border Patrol agents and immigration inspectors truly feels to some at INS like salt in the wound.

A Customs spokesperson did not return my call for comment.

Asa Hutchinson — the Drug Enforcement Administration head who's been nominated by the president to be the No. 3 guy at DHS, in charge of transportation and border security — met with reporters earlier this week, and I asked him about INS unhappiness. He declared that the Homeland Security law was "very clear in its language that INS would be abolished," but added in apparent contradiction that it would be "restructured."

He added that he had recently visited a crossing on the U.S. northern border and found that "the inspectors on the ground view [the move to DHS] as an exciting opportunity. … They see the mission as more important than anything else, more important than structure." He acknowledged it will be a time of uncertainty, but repeated, "INS has to be restructured."

A spokeswoman for the Senate Government Affairs Committee, which managed the legislation, pointed out that from the very beginning of discussions about a DHS, "the enforcement and services sections of INS were envisioned as being split into different directorates. The law, as signed by the president, calls for the Border Patrol to be moved to a new Border and Transportation division, while the services will exist under the Bureau of Citizenship and Immigration Services."

The Directorate of Border and Transportation Protection, to be headed by Undersecretary Hutchinson, "shall be responsible for securing borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including coordinating governmental activities at ports of entry; and administering the duties of the entities transferred to the Directorate."

There follows a list of the entities being transferred into the Directorate, including Customs and others, plus "the enforcement programs of the Immigration and Naturalization Service (which shall be organized into a separate Bureau of Border Security with responsibility for border patrol, inspections, detention, removal, and investigations) ..."

Nowhere does there appear any assertion that INS's enforcement functions will be gobbled up by Customs. I guess only time will tell.

Cracking Down on Crime 'In the Suites'

The Justice Department has been making it clear in recent weeks that it wants to see "crime in the suites" treated every bit as harshly as crime in the streets.

On Dec.16, Deputy Attorney General Larry Thompson dispatched a fairly harsh memo to the head of the Bureau of Prisons, Kathleen Hawk Sawyer, informing her that BOP's policy of allowing some prisoners to serve out their sentences in halfway houses is downright "unlawful."

Thompson wrote that he had learned that BOP had a policy of placing "low-risk, non-violent offenders with short terms of imprisonment in a community corrections center," or CCC. BOP had done this by interpreting the term "imprisonment" "to encompass CCCs, facilities in which offenders are free to leave the institution during approved hours for the purposes of participating in employment and other community programming activities."

Thompson asked the Office of Legal Counsel, which functions as Justice's chief legal braintrust, to assess the legality of this policy. The OLC memo, prepared by Principal Deputy Assistant Attorney General M. Edward Whelan, III, found that "BOP has no such general authority. ... Community confinement does not constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment. BOP's practice is therefore unlawful."

Citing a ruling from the 2nd Circuit Court of Appeals, the OLC opinion noted, "'Imprisonment' and 'community confinement' are not synonyms. 'Imprisonment' is the condition of being removed from the community and placed in prison, whereas 'community confinement' is the condition of being controlled and restricted within the community."

The difference is obviously significant for the white-collar criminal, who is most often sent to such corrections centers. Thompson underscored this point in his memo to Sawyer, noting the "potentially disproportionate, and inappropriately favorable, impact on so-called 'white-collar' criminals. In promulgating the Sentencing Guidelines, the Sentencing Commission sought to increase the likelihood of incarceration for white-collar offenders. Such individuals — even those guilty of serious economic crimes — frequently enjoyed lenient sentences under pre-Guidelines practice."

Thompson sternly lectured the BOP chief: "BOP's current placement practices run the risk of eroding public confidence in the federal judicial system. White collar criminals are no less deserving of incarceration, if mandated by the Sentencing Guidelines, than conventional offenders. Indeed, such individuals are often better educated and more rational than other criminals and are thus more likely to weigh the risks of possible courses of action against the anticipated rewards of criminal behavior. As many studies have shown, the prospect of prison — more than any other sanction — is feared by white-collar criminals and has a powerful deterrent effect."

Thompson ordered that any federal offenders currently in any community confinement who have more than 150 days remaining on their sentence must be transferred to "an actual prison facility."

According to the BOP, this means about 125 federal inmates will immediately be transferred into penitentiaries to serve out the rest of their sentences.

Criticizing the Commission

Corporate crime penalties were also in the forefront this past week at the U.S. Sentencing Commission, which, subject to Congressional approval, sets sentencing policy for all federal courts.

The commission this past week met to enact new emergency amendments to its sentencing guidelines pursuant to last year's Sarbanes-Oxley Act, in which Congress directed that penalties for corporate and other white-collar crime be increased.

The commission proudly unveiled its new enhanced penalties, with its chair, Judge Diana Murphy, asserting that the commission "is doing its part in the fight against corporate fraud. The penalty increases that we approved today send a message to those who would commit securities, accounting, and pension frauds that our country will not tolerate this behavior."

Significant sentencing increases were mandated for white-collar offenses that affect a large number of victims, or endanger the solvency of publicly traded corporations or other large employers or 100 individuals.

An officer of a public company, for example, who defrauds more than 250 employees or investors of more than $1 million will now receive more than 10 years, double the earlier penalty. Those who obstruct justice or shred pertinent documents will get three years' imprisonment, double the prior 18 months.

While defense attorneys were complaining of the draconian new sentences, however, the Justice Department was bitterly disappointed. In lengthy letters to the Commission, Justice attorneys had argued for even harsher penalties. In one letter, dated Dec. 18, Eric Jaso, Counselor to Criminal Division chief Michael Chertoff, argued that "significant penalty increases for fraud offenses are necessary."

Jaso argued the penalty enhancements "should apply not only to the billion-dollar cases that have dominated the news headlines in recent months, but also to the many so-called 'lower-loss' criminal fraud cases that make up the bulk of federal prosecutions across the country. In addition to the World Coms and Enrons, the Department prosecutes many smaller-scale frauds around the country that, while evidently less newsworthy, nonetheless constitute heart-rending calamaties for their victims.

"Congress did not intend to ignore such cases and reserve severe punishment only for those whose illegal deeds make the front page. Yet the proposal published by the Commission — which increases penalties only modestly, and primarily in the most egregious, large-loss cases involving major public corporations — would achieve exactly that result."

Jaso maintained that the commission's amendment would "send the entirely wrong signal ... a message to the American public and corporate officers that fraud crimes are not taken seriously. We believe the Commission's action must ensure that white collar criminals are held fully accountable and must result in tough, consistent, incarceratory penalties for those who would threaten the integrity of our financial markets and our economy."

Among Jaso's other complaints were that the Commission had not adequately beefed up penalties for campaign finance offenses mandated in the campaign reform law, the Bipartisan Campaign Reform Act, or BCRA.

In particular: "Attempts by foreign governments, citizens, or their agents to intervene in our election processes are nothing less than an attack on our national sovereignty. As we read BCRA, Congress appears to agree; an enhancement when the donated funds are from a 'foreign source' is the first of BCRA's mandated enhancements. ... we believe this enhancement should also include additional levels when the foreign funds are from a foreign government."

Jaso proposes that "two significant enhancements in this area are warranted: a 4-level enhancement if the funds are from a foreign national, and an 8-level enhancement if the foreign funds are from a foreign government and the offender knows a foreign government is the source."

But despite Jaso's eloquence (and he is a non-voting member of the commission), the commission failed to see things his way. The commission accepted its amendment by a vote of 5-0, with some commissioners explaining that Congress had not been entirely clear in defining what was meant by "serious" fraud. The new penalties will take effect beginning Jan. 24.

Justice spokesman Bryan Sierra said the Department is disappointed in the commission's "failure to enact tough penalties for corporate criminals." Officials indicated they may seek further action from Congress to make clear its intentions to crack down harder, even on the lesser white-collar criminals.

Beverley Lumpkin has covered the Justice Department for 17 years for ABCNEWS. Halls of Justice appears every Saturday.