Backs Proposed Law Putting Office Under Attorney General : Marshals Service Seeks to Loosen Judges’ Grip

A federal judge in Georgia habitually relied on deputy U.S. marshals to drive him and his colleagues to tennis courts and to take his car in for repairs. In Indiana, another federal jurist sought the help of a deputy marshal in herding cattle and purchasing a television set at a discount house.

Objecting to such extreme cases of off-bench assignments--documented by federal authorities--the U.S. Marshals Service is seeking legislation to loosen the judicial grip over marshals by giving the U.S. attorney general the final say over their activities.

The Marshals Service drive for the new law, which is backed by the Reagan Administration, has sparked a sharp interbranch clash. Many judges have accused the marshals of “empire building” by assuming law enforcement tasks beyond their principal mission of providing courtroom security.

Role Has Expanded

In recent years, the Marshals Service has indeed expanded its role, shifting its focus to other aspects of law enforcement. The marshals have emphasized, for example, apprehension of federal fugitives through strike-force operations conducted jointly with local police, protection of government witnesses and their families, and administration of government efforts to seize criminal assets, particularly those of drug dealers.

U.S. District Judge Dudley H. Bowen Jr. of Augusta, Ga., and other jurists, mostly in the South, sharply criticize these additional functions. “Without statutory authorization, the service has transformed a low-profile, hard-working, well-trained cadre of people dedicated to court service into a glamorous new national police agency,” Bowen said.

Chief Judge William Brevard Hand of Mobile, Ala., agreed. A letter to a fellow judge accused Marshals Service Director Stanley E. Morris of “trying to build his own empire where he can become an equal arm with the FBI,” adding that he “apparently has the Administration’s ear in doing so.”

Morris strongly rejects such claims, noting that “it would come as a surprise to the 103 marshals and deputies who were killed in the Oklahoma Territory during the late 1800s while pursuing fugitives that this would be considered a ‘new duty’ in 1986.

“The truth is that the authority and responsibilities of the U.S. marshals have been exceedingly broad throughout history.”

Discretion Limit Feared

At the root of the conflict is the longstanding fear by jurists of any action that could limit their courtroom discretion. Moreover, there are conflicting views of what Congress envisioned in creating the marshals office, along with the judiciary, in 1789.

“There are . . . judges who perceive this not as a question of utilizing resources alone, but as a challenge to running their proceedings in their own courts,” said William Weller, a legislative affairs officer for the Administrative Office of Courts, an arm of the judiciary that oversees the administration of the federal courts.

A proposal to compromise the strident dispute was rejected last month by the U.S. Judicial Conference, which formulates budget and management policies for judges. And, in the course of that action, it became clear that a good many judges are ignoring a security agreement worked out in 1982 by former Chief Justice Warren E. Burger and then-Atty. Gen. William French Smith.

The Burger-Smith agreement adopted the findings of a Justice Department task force on court security, establishing four levels of anticipated risk and providing that marshals did not need to be in courtrooms for low-risk proceedings.

Despite Burger’s endorsement of that stance, a survey by the marshals in 1984 found that about one-third of U.S. District Court judges were still requiring a deputy’s presence in their courtrooms even at the lowest risk proceedings.

Guessing Called Risky

Those sitting on the bench argue that trying to guess which proceedings carry high or low risk can itself be a dangerous prediction.

“Disturbance is as likely to occur in a civil trial (most frequently categorized as low-risk) as it is in a criminal matter,” Judge Bowen said. “The nature and degree of risks cannot be accurately predicted.”

But Marshals Service Director Morris counters that the Burger-Smith policy “is based upon the legitimate security and law enforcement needs of the judiciary.” If there is no need, he says, there should be no marshal in the courtroom.

The function of the bailiff--seating witnesses and spectators, carrying documents to the jury and other such chores--”is not a proper security function justifying the use of a trained law enforcement officer,” Morris says.

Under current law, the U.S. marshal in each of the nation’s 94 judicial districts “may, in the discretion of the respective courts, be required to attend any session of court,” although the Burger-Smith guidelines qualify that discretion. The law also provides that marshals “shall execute all lawful writs, process and orders issued under authority of the United States. . . .”

Narrow Definition Sought

The Administration, in offering its new legislation, seeks to narrow the definition of the marshal’s role in protecting the judiciary. The proposed U.S. Marshals Service Act states that the marshal “is authorized to provide for the safety and security of the federal courts . . . and provide other assistance in accordance with the policies established by the attorney general.” The marshal’s duty in executing all lawful writs also would be “in accordance with the policies established by the attorney general. . . .”

Although neither house of Congress has voted on the legislation, a Senate aide who worked on the bill predicted that it will be enacted in the next Congress because “we’re either going to have the marshals as a first-rate law enforcement organization, or they’re going to be at the beck and call of the judges.”