January 18, 2017 (Fault Lines) — The Judiciary Act of 1789 established the original 13 federal judicial districts and called for appointment of a Marshal for each district. The Senate confirmed President Washington’s nomination of the first Marshals on September 26, 1789.
There are now 94 U.S. Marshals who are nominated by the President and confirmed by the Senate. 28 U.S.C. § 561(c).* Each U.S. Marshal is an Executive Branch official in the Justice Department.
I bet you didn’t know that each U.S. Marshal has a unique power. That is, the Marshal “may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof.” 28 U.S.C. § 564. How cool is that?
But exercising the power of a county sheriff is not the only thing a U.S. Marshal does. The U.S. Marshal (and his or her deputies**) are responsible for:
- protecting members of the judicial family*** (judges, attorneys, witnesses, and jurors);
- providing physical security in courthouses;
- safeguarding endangered government witnesses and their families;
- transporting and producing prisoners for court proceedings;
- executing court orders and arrest warrants;
- apprehending fugitives; and,
- seizing assets gained by illegal means and providing for the custody, management and disposal of forfeited assets.
United States Marshals Service, FY 2017 Performance Budget, President’s Budget, at p. 5 (February, 2016).
Unfortunately, nominations for U.S. Marshal have frequently been seen as a matter of patronage rather than professionalism. We have been lucky in Nebraska except for a couple of glaring exceptions which I will not mention.
At the present time, Mark Martinez, is our exemplary Marshal. On January 13, 2010, Mark Martinez was sworn in as the U.S. Marshal for the District of Nebraska. Before becoming our U.S. Marshal, Mark served in the Omaha Police Department from 1984 until his retirement in March 2009, first as a police officer, and later as Sergeant, Lieutenant, Captain, and Deputy Chief. He is also an adjunct instructor for the University of Nebraska at Omaha. He received a B.S. and a Master of Science in Criminal Justice from the University of Nebraska at Omaha in 1982 and 1993, respectively. He is a wonderfully professional, kind and utterly decent human being and demands that his deputies display the same attributes. And, as we all know, professionalism, kindness and decency flow from the top down.
I deal with the U.S. Marshals on a daily basis. I see how they treat prisoners. Indeed, I have in mind the very recent efforts of a supervisory DUSM working hard to address the health care needs of a dying offender who had been granted compassionate release by the Bureau of Prisons. I have twice been the beneficiary of protective measures taken by the USMS. I have also recently requested and received the services of the USMS to make sure that a defendant and his counsel remained safe after a particularly emotional sentencing.
I understand deeply the dangerous activities these men and women undertake in both their routine duties and as members of various task forces. Indeed, I well remember (I was a law clerk then) when U.S. Marshal Lloyd Grimm from the District of Nebraska was shot in the chest by a sniper at long range during the uprising at Wounded Knee. He ended up paralyzed from the waist down. See Martin Waldron, U.S. Marshal Shot at Wounded Knee, New York Times (March 27, 1973).
I hope our new President realizes the importance of his nominations for U.S. Marshal of the various districts. I implore him to appoint men and women who are experienced in law enforcement. In fact, I suggest that he consider those who have risen through the ranks of the United States Marshals Service. The job of United States Marshal is too important to treat as a political plum.
In short, I second a remark made by United States District Judge William G. Young of Boston in 2007. When speaking of United States Marshals, the good judge pointedly said that “direct command of law enforcement officers in harm’s way [should] never be entrusted to political patronage appointees.”
Richard G. Kopf
Senior United States District Judge (Nebraska)
*This year, if everything goes according to the confirmation plan, a guy with big ears (Attorney General Sessions) will be able to make a temporary appointment if the position of U.S. Marshal becomes vacant. 28 U.S.C. § 562(a).
**There are about 4,192 Deputy U.S. Marshals (DUSMs).
***The phrase “judicial family” is goofy. Would anyone refer to the Congress as a “family?” On second thought, the idea of Chuck Schumer having a sleep over at the home of Mitch McConnell is intriguing.