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http://www.fear.org/chicago.html
> POLICING FOR PROFIT: THE DRUG WAR'S
> HIDDEN ECONOMIC AGENDA
> by Eric Blumenson* & Eva Nilsen**
>Abstract: During the 25 years of its existence, the "War on Drugs" has transformed the
>criminal justice system, to the point where the imperatives of drug law enforcement now
>drive many of the broader legislative, law enforcement, and corrections policies in
>counterproductive ways. One significant impetus for this transformation has been the
>enactment of forfeiture laws which allow law enforcement agencies to keep the lion's share
>of the drug-related assets they seize. Another has been the federal law enforcement aid
>program, revised a decade ago to focus on assisting state anti-drug efforts. Collectively
>these financial incentives have left many law enforcement agencies dependent on drug law
>enforcement to meet their budgetary requirements, at the expense of alternative goals such
>as the investigation and prosecution of non-drug crimes, crime prevention strategies, and
>drug education and treatment. In this article we present a legal and empirical analysis of
>these laws and their consequences. In so doing, we seek to explain why the drug war
>continues with such heavy emphasis on law enforcement and incarceration, and show the
>way to more rational policies.
>Since March 1, 1998, this page has had visitors
>Contents:
>Introduction
>I. The Drug War Dividend
>II. Conflict of Interest Objections to Self-Financing Police Agencies
> A. The Due Process Objection
> B. Policy Objections
>III. The Accountability Objections to Self-Financing Police Agencies
> A. The Separation of Powers Objection
> B. Policy Objections
>IV. Remedies and Prospects
>Conclusion
>
>1/14/97 revision. Copyright 1997 by University of Chicago Law Review, all rights reserved. We presented
>an earlier version of this article at the June, 1997 meeting of the Law and Society Association, and at
>faculty workshops at the Boston University School of Law and Suffolk University Law School. We are
>grateful to all participants, and to the faculties at both institutions who continued to provide thoughtful
>and valuable advice throughout the research and writing of the article. We also thank Larry Weinberg
>for research assistance, and Dan Baum, Brenda Grantland, Eric Sterling and Karen Tosh for leading us
>to much of the obscure but crucial data that appears herein. This research was supported by a grant from
>the Open Society Institute's Individual Project Fellowships Program.
>* Professor, Suffolk University Law School; J.D. Harvard Law School, 1972.
>** Assoc. Clinical Prof. of Law, Boston University Law School; J.D. Univ. of Virginia
>Law School, 1977; LL.M., Georgetown University Law Center, 1980
>Asset seizures play an important role in the operation of [multijurisdictional drug] task
>forces. One 'big bust' can provide a task force with the resources to become financially
>independent. Once financially independent, a task force can choose to operate without
>Federal or state assistance.
> - Report commissioned by the Department of Justice, Oct., 1993(1)
>[W]hat reason can there be, that a free people should be expos'd to all the insult and
>abuse_and even the fatal consequences which may arise from the execution of a writ of
>assistance, only to put fortunes into private pockets? . . .[C]an a community be safe with an
>uncontroul'd power lodg'd in the hands of such officers...?
> - James Otis, Boston Gazette (January 4, 1762)(2)
> INTRODUCTION
>The Nixon Administration officially declared the "War on Drugs" twenty-five years
>ago.(3) It has continued, at escalating levels, ever since.(4) Today we annually spend
>$15 billion in federal funds(5) and $33 billion in state and local funds annually to finance
>this war.(6) Recent FBI crime statistics report that in one year there were almost 1.5
>million drug arrests, of which 500,000 were arrests for marijuana possession.(7) Sixty
>percent of federal prisoners are incarcerated for drug offenses.(8)
>This massive outpouring of money and effort has brought us record numbers of drug
>seizures, asset forfeitures, and prosecutions.(9) But by more meaningful measures the
>drug war has been an extraordinary failure. Drugs are more available, at higher purity
>and lower prices, than they were at the start of the decade.(10) Drug dependence in the
>inner city(11) and among teenagers(12) has increased substantially. And our drug
>problem continues to produce massive amounts of crime,(13) $20 billion in annual
>medical costs,(14) a third of all new HIV infections,(15) prisons filled with non-violent
>offenders,(16) and the attendant decimation of inner city communities.(17) By all
>accounts, we have thus far been unable to spend and jail our way out of this problem.
>Given these facts, and a general consensus that the war on drugs has been a failure,(18)
>one might wonder why essentially the same strategies persist year after year,
>untouched by the wisdom of 25 years of experience. And why do so few public and law
>enforcement officials speak out against this policy? The answer is that the drug war has
>achieved a self-perpetuating life of its own because, however irrational it is as public
>policy, it is fully rational as a political and bureaucratic strategy. Although the political
>impetus is well recognized -- periodically demonstrated by the public demise of people
>deemed "soft on drugs," like former Surgeon-General Joycelyn Elders, Judge Harold
>Baer, and ambassadorial nominee William Weld(19) -- the bureaucratic motive
>underpinning the drug war is not. This bureaucratic stake is financial, deriving from the
>lucrative rewards available to police and prosecutorial agencies that make drug law
>enforcement their highest priority. It operates invisibly, obscured by moral and policy
>rationales.
>Congress conferred these financial benefits to state and local law enforcement directly,
>through block grants earmarked for drug law enforcement, and indirectly, through
>forfeiture provisions authorizing law enforcement agencies to seize "drug-related"
>assets, like a house in which marijuana plants have been grown, and use the proceeds
>for their budgetary needs. Together these programs have insured continued police
>enthusiasm for the drug war by offering financial largess unmatched in any other area of
>law enforcement. But they have also transformed the criminal justice system in two
>dangerous ways.
>First, these programs have distorted governmental policy-making and law enforcement.
>During the past decade, law enforcement agencies have turned to asset seizures and
>drug enforcement grants to compensate for budgetary shortfalls, at the expense of
>other criminal justice goals. We believe the strange shape of the criminal justice
>system today -- the law enforcement agenda that targets assets rather than crime,(20)
>the 80% of seizures that are unaccompanied by any criminal prosecution,(21) the plea
>bargains which favor drug "kingpins" and penalize the "mules" without assets to
>trade,(22) the "reverse stings" which target drug buyers rather than drug sellers,(23)
>the overkill in agencies involved in even minor arrests,(24) the massive shift towards
>federal jurisdiction over local law enforcement(25) -- is largely the unplanned byproduct
>of this economic incentive structure.
>Second, the forfeiture laws in particular are producing self-financing, unaccountable law
>enforcement agencies divorced from any meaningful legislative oversight. There are by
>now numerous examples of such semi-independent agencies targeting assets with no
>regard for the rights, safety, or even lives of the suspects.(26) Such dire results should
>prompt reform, particularly because a single measure -- mandating that forfeited assets
>be deposited in the Treasury's general fund rather than retained by the seizing agency
>-- would cure the forfeiture law of its most corrupting effects. But thus far the forfeiture
>industry has enjoyed an astonishing immunity from scrutiny by lawmakers and the
>courts.(27)
>In the following pages, we first describe in more detail how the drug war's financial
>largess has kept its soldiers in business. We then discuss the destructive impact of this
>economic regime, marshaling evidence to show that the corruption of law enforcement
>priorities and wholesale miscarriages of justice can be fairly attributed to the operation
>of these incentives. Finally in Part IV, we explore potential legal and legislative
>remedies through which law enforcement may regain its bearings.
>Our investigation throughout focuses on the economic underpinnings of current drug
>law enforcement policy. Drug policy also raises an extraordinarily broad range of moral,
>health, criminological and other concerns, which we do not discuss except insofar as the
>financial incentives we describe have interfered with attempts to address them. We
>take no position here on such pivotal issues as legalization or decriminalization, but
>hope to speak to abolitionists and prohibitionists alike: all sides should be able to agree
>that, at a minimum, the law enforcement agenda should not be held hostage to the
>opportunities for financial self-aggrandizement we describe herein.
>I. THE DRUG WAR DIVIDEND
>Congress has passed a new crime bill every few years. Throughout the 1980's these
>laws became especially punitive to drug offenders(28) and increasingly profitable to the
>law enforcement agencies that pursue them. The latter was accomplished primarily by
>rewriting existing federal aid and forfeiture laws to specifically promote and finance
>drug law enforcement. We take each in turn.
>Federal aid to drug law enforcement: In 1986 Congress revised the federal aid program,
>renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance
>Program after a New York city police officer who was shot during a drug arrest.(29)
>Byrne grants replaced the federal block grants previously given to the states by the
>now-defunct Law
>Enforcement Assistance Administration.(30) Unlike the earlier program, Byrne grant
>recipients are required to use these funds to fight the war on drugs.(31) The Byrne
>Program is now the primary federal program that funds the state and local war on drugs.
>Byrne grants have altered the law enforcement landscape in numerous ways -- most
>notably in the proliferation of multijurisdictional drug task forces (MJDTFs),(32) now
>collectively the largest funding category in the federal aid program.(33) Between 1988
>and 1991, the number of Byrne-funded task forces almost doubled, to 904 task forces
>covering 83% of the population,(34) with up to 63 multijurisdictional task forces
>operating within individual states.(35) MJDTF drug arrests fluctuated between 220,000
>and 280,000 annually during this period.(36) (See Figs. 1 and 2 on the following
>pages.(37))
>Forfeiture and asset distribution: Modern drug forfeiture law dates from 1970, when
>Congress passed the Comprehensive Drug Abuse Prevention and Control Act.(38) That Act
>included a civil forfeiture provision, 21 U.S.C. sec. 881, authorizing the government to
>seize and forfeit drugs, drug manufacturing and storage equipment, and conveyances
>used to transport drugs.(39) This provision was intended to forestall the spread of drugs in
>a way criminal penalties could not: by striking at its economic roots. When criminal
>prosecution sends a dealer to jail a subordinate will most probably take his place, but
>seizing the means of production and other capital may shut down the trafficking business
>for good. In the 27 years since, the list of properties subject to forfeiture has greatly
>expanded, and the required connection to illegal drug activity has become ever more
>remote. Congress amended the forfeiture law to include proceeds traceable to drug
>transactions in 1978,(40) added real property in 1984(41), and in 1986 promulgated a
>"substitute assets" law providing that property of an equal value may be forfeited in place
>of forfeitable assets that are no longer available.(42) Today cash, bank accounts, jewelry,
>cars, boats, airplanes, businesses, houses and land are all fair game. This wholesale
>expansion of targets has produced enormous confusion as to what kind of nexus to a drug
>violation will suffice. The law provides for forfeiture of property which "facilitated" a drug
>crime(43), but courts have developed no clear criteria for what constitutes facilitation.(44)
>Some police, prosecutors and judges construe this as a license to proceed on the most
>tenuous of grounds -- for example, seeking to forfeit a bar for failing to stop drug dealing
>within,(45) or a house in which the owner's son sold drugs,(46) or cash on which some
>cocaine residue has been found.(47)
>For prosecutors, the expanding reach of the forfeiture law is complemented by the
>great procedural and financial benefits it offers. Procedurally, two tremendous
>advantages accrue to the government from an ancient legal fiction that dominates all
>forfeiture cases -- that the property is guilty and on trial.(48) This means, first, that
>forfeiture can be used even when there is insufficient evidence to make a criminal case
>against the defendant, or when the defendant is a fugitive. The government need only
>seize the assets,(49) and it is then up to the owner to challenge the seizure in a costly
>and unpromising hearing.(50) Second, as a "civil action" against the property itself(51)
>(as in United States v. One 1974 Cadillac Eldorado Sedan(52)), few of the constitutional
>safeguards imposed on criminal prosecutions apply.(53) There is no presumption of
>innocence, no right to an attorney, and no objection to hearsay.(54) The burden of proof
>is reversed: once the government establishes probable cause to believe the property is
>subject to forfeiture, the burden shifts to the property owner to prove by a
>preponderance of the evidence that the property does not belong to the
>government.(55) There is no constitutional requirement that the owner have intended
>or been negligent regarding the illegal use of the property,(56) or that the property
>owner be prosecuted for the underlying criminal activity prior to action against the
>property. Forfeiture may occur even if the owner is charged and acquitted.(57) (Of
>course, given the rapid expansion of forfeitable targets to include homes, money and
>businesses, often the only "taint" on non-contraband property is its owner's alleged
>wrongdoing.(58) In such cases forfeiture is hardly distinguishable from punishment
>without trial -- "a deliberate subterfuge"(59) which has been analogized to Soviet era
>punishment of political offenders under "non-criminal" laws which existed to deprive
>such people of their criminal procedural rights.(60)) Given these unfavorable odds it is
>not surprising that roughly 90% of judicial forfeitures are uncontested.(61)
>Congress handed police and prosecutors a powerful tool, but their interest in using it
>accelerated greatly when Congress enacted two additional amendments to the
>forfeiture law. One amendment, part of the 1984 bill, allowed federal law enforcement
>agencies to retain and use the proceeds from asset forfeitures, rather than requiring
>these assets to be deposited in the Treasury's General Fund.(62) The other initiated the
>federal "equitable sharing" program, which gave the state and local police agencies the
>lion's share of seized assets even when federal agents were involved in the arrest.(63)
>The equitable sharing program also includes a "federal adoption" procedure, whereby
>state police who turn seized assets over to the Justice Department for "federal
>forfeiture" receive back up to 80% of the value, to be used exclusively for law
>enforcement purposes.(64) These amendments have had two rather immediate
>consequences relevant to our inquiry. First, they have given state and local police an
>enormous economic stake in the federal forfeiture law. At a time when state
>government budgets are shrinking, equitable sharing offers a new source of income,
>limited only by the energy police and prosecutors are willing to put into seizing
>assets.(65) Second, the amendments have produced a major shift towards federal
>jurisdiction over local law enforcement, because "federalizing" a forfeiture is now a
>more profitable course for both state and local criminal justice bureaucracies. For many
>state and local police departments, federal forfeiture allows the retention of a far larger
>portion of the assets (up to 80%) than they would receive by proceeding under their
>own state forfeiture laws, which generally require sharing with other, non-law
>enforcement state agencies.(66) Federal adoption is also profitable for the U.S.
>Department of Justice, which receives a 20% share of assets with little if any
>expenditure of federal investigative or law enforcement resources.(67) Indeed, the
>Department of Justice promotes federalization by providing larger shares to the state
>or local agency if it "could have forfeited the asset(s) on its own" but agreed to federal
>adoption instead.(68) The profit and ease of federal adoption has led to widespread
>circumvention of stricter state forfeiture laws.(69)
>The forfeiture laws were designed to combat drug crime by attacking the economic
>viability of drug trafficking enterprises. It continues to be billed as the weapon of choice
>in the Drug War. The Director of the Justice Department's forfeiture unit testified to a
>Congress subcommittee that "[a]sset forfeiture can be to modern law enforcement what
>air power is to modern warfare."(70) But in fact the aggressive use of forfeiture laws in
>the last decade has never produced this intended benefit: the $730 million in 1994
>federal forfeitures was surely not enough to significantly stifle a $50 billion drug trade,
>although more than enough to reward police and government officials for their efforts.
>(71)
>What forfeiture does do well is raise money.(72) Police and prosecutors argue that 21
>U.S.C. 881 enables them to carry out ordinary law enforcement business and raise
>money at the same time -- to do well by doing good.(73) Unfortunately, the real impact of
>forfeiture has not been so benign. In practice forfeiture laws have not simply enhanced
>the ability of law enforcement to do its job, but rather have changed the nature of the
>job itself.(74) Both the crime prevention and due process goals of our criminal justice
>system are compromised when salaries, continued tenure, equipment, modernization,
>and budget depend on how much money can be generated by forfeitures.
>
>II. THE CONFLICT OF INTEREST OBJECTIONS TO
>SELF-FINANCING
> POLICE AGENCIES
>
>The most intuitively obvious problem presented by the forfeiture and equitable sharing
>laws is the conflict of interest that exists when law enforcement agencies are authorized
>to keep the assets they seize. It takes no special sophistication to recognize that this
>incentive constitutes a compelling invitation to police departments to depart from
>legitimate law enforcement goals in order to maximize funding for their operations. For
>example, as detailed below some police departments now prefer to arrest drug buyers
>rather than dealers because buyers are sure to have seizable cash with them. Although
>profitable to the agencies involved, this agenda badly undermines crime control
>because arresting buyers rather than sellers does nothing to reduce the supply of drugs
>in a community. It also results in the less culpable suffering more severe treatment, the
>antithesis of a just system based on proportional punishment. These destructive
>priorities are characteristic of the pervasive distortion of law enforcement policy that
>flows from targeting assets rather than crime. In section II(B) we argue that no rational
>crime control program will be possible until Congress repeals the conflict of interest
>license it has issued to police and prosecutors. First, however, we consider whether
>this conflict rises to a constitutionally objectionable level which might be remedied
>through litigation.
>
> A. The Due Process Objection
>Impartiality is inseparable from justice.(75) This principle is embedded in the
>Constitutional due process guarantee, which includes the right to an impartial tribunal
>in both civil and criminal cases.(76) The Supreme Court has found this right abridged
>whenever a conflict of interest exists which would "offer a possible temptation to the
>average man as a judge...not to hold the balance nice, clear and true" between the
>parties.(77)
>Such a conflict obviously exists when the fact-finder has a personal pecuniary interest in
>the outcome, as when his compensation is contingent on conviction(78) or the issuance
>of a search warrant.(79) But the Fourteenth Amendment may also disqualify a judge who
>will receive no direct benefit from the ruling if his department or agency would. Thus in
>both Tumey v. Ohio(80) and Ward v. Village of Monroeville,(81) the Supreme Court held
>that the mayor could not constitutionally sit as judge and assess fines to be paid to the
>village treasury, because his responsibility for town finances gave him a motive to
>convict and jeopardized his impartiality.(82) The criterion is possible temptation: even a
>relatively small emolument may suffice,(83) and the temptation need not have actually
>influenced the decision at all.(84)
>These precedents should outlaw such forfeiture statutes as Louisiana's, which
>authorizes the criminal court to issue a warrant for seizure of the property, order
>forfeiture, and then allocate forty percent of the proceeds to its own criminal court
>fund.(85) But the more potentially significant question is whether police and
>prosecutorial decisions must also satisfy due process standards of impartiality, and on
>this the constitutional parameters are yet to be fully developed. At this point the
>Supreme Court has indicated only that (1) the stringent impartiality standard it requires
>of adjudicatory officials does not apply to prosecuting officials, but (2) neither is the
>prosecutor free from all conflict of interest restrictions. Some due process limits on law
>enforcement rewards do exist, but where between these poles they may be found must
>still be spelled out, and likely will be when litigants focus on the equitable sharing
>payback law.
>What constitutional guidance exists is found primarily in Tumey and a subsequent case,
>Marshall v. Jerrico.(86) In Tumey, the Court relied on the mayor's pecuniary stake in
>the fine as reason enough to reverse the conviction, apparently unperturbed by the
>other shares distributed to the prosecution and police.(87) Without specifically
>addressing Ohio's statutory scheme, the court allowed that "the Legislature of a state
>may and often ought to stimulate prosecutions for crime by offering to those who shall
>initiate and carry on such prosecutions rewards for thus acting in the interest of the
>state and the people."(88) But the Court did not directly confront the question whether
>some law enforcement incentives create an unconstitutional conflict of interest until a
>half century later, in Marshall v. Jerrico.
>Jerrico upheld a section of the Fair Labor Standards Act that allowed a division of the
>Labor Department to retain the civil penalties it assessed for child labor violations, as
>compensation for the costs of determining violations and assessing penalties.(89)
>Jerrico, Inc. was fined $l8,500 by the Regional Administrator, appealed and lost before
>an Administrative Law Judge, and then sued in Federal District Court on grounds that
>the reimbursement provisions violated its due process rights by encouraging agency
>personnel to seek and impose excessive fines. The District Court granted the plaintiff
>summary judgment, holding that this arrangement created an impermissible risk of bias
>and noting that
>The more appropriate procedure is simple and constitutionally sound: pay all civil
>money penalty funds directly into the Treasury of the United States. To allow only the
>Department of Labor to deviate from such a clear procedural alternative, to the
>detriment of alleged violators, would be to disregard the fundamental tenets of our legal
>system.(90)However, the Supreme Court rejected Jerrico's claims, finding the Tumey
>rule inapposite because department officials were performing purely prosecutorial
>functions.(91) Distinguishing the conflict of interest prohibitions governing a factfinder,
>who must be and appear impartial, from the less stringent limitations on law
>enforcement officials, the court held that prosecutors "need not be entirely neutral and
>detached. In an adversary system, they are necessarily permitted to be zealous in their
>enforcement of the law."(92) But this was far from a blank check for prosecutorial
>self-aggrandizement, because the Court simultaneously emphasized that prosecutors
>too are bound by at least some due process limitations on conflicts of interest:
>We do not suggest...that the Due Process Clause imposes no limits on the partisanship
>of administrative prosecutors. Prosecutors are also public officials; they too must serve
>the public interest. In appropriate circumstances the Court has made clear that
>traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in
>which the enforcement decisions of an administrator were motivated by improper
>factors or were otherwise contrary to law. Moreover, the decision to enforce -- or not
>to enforce -- may itself result in significant burdens on a defendant or a statutory
>beneficiary, even if he is ultimately vindicated in an adjudication. A scheme injecting a
>personal interest, financial or otherwise, into the enforcement process may bring
>irrelevant or impermissible factors into the prosecutorial decision and in some contexts
>raise serious constitutional questions.(93)In Jerrico the Court found that the
>constitutional barrier had not been crossed because the statute conferred no personal
>gain on the Regional Administrator, and the institutional benefit to the prosecuting
>department (the Employment Standards Administration) was too small to be a factor in
>decisions regarding whom to prosecute and how much to fine.(94) Analyzing the
>relevant three year period, the Court noted that the ESA was not at all financially
>affected by the relatively minimal penalties collected; the national office of the ESA
>allocated the penalties among the regional offices and other departments, and thus a
>regional office could not expect that any penalties it assessed would be returned to it;
>and finally, since any penalties distributed to a regional office were determined in
>proportion to office expenses rather than the amount collected, a regional office would
>obtain no benefit by assessing an unjustifiably large penalty.(95) Given this undisputed
>record, the claim that Sec. 16(e) would bias the decisions of the regional administrator
>was "too remote and insubstantial to violate the constitutional constraints" on
>prosecutors.(96) There is no implication here that the Justices would have been equally
>tolerant of a scheme that, for example, paid over traffic fines to the police officer who
>issues the citation. Rather, the Court examined three relevant factors -- the degree of
>institutional financial dependence on the prosecutorial decision, the official's personal
>stake, and the penalty distribution formula -- and none of them suggested any
>temptation towards impropriety.
>Before applying the Jerrico criteria to the forfeiture case, we should note that the
>Court's sharp distinction between judicial and prosecutorial standards is controversial,
>and belies the overwhelmingly dispositive role of discretionary prosecutorial decisions
>in a system where few cases ever go to trial: the justice of the system depends
>primarily on the fairness of the law enforcement branch. The Court would have done
>better to find a due process requirement that law enforcement agencies be untarnished
>by any actual or perceived temptation towards self-aggrandizement.(97) But instead of
>applying a bright line rule, Supreme Court doctrine after Tumey and Jerrico construes
>the constitutional limitation as a matter of degree, in the sense that some minimal
>rewards might act to "stimulate" law enforcement officials to do their job without
>distorting or biasing them towards unjust prosecutions or excessive penalties.(98)
>Whether a prosecutorial payback provision violates the Fourteenth Amendment thus
>necessarily requires a factual inquiry into the effect of these particular rewards on the
>agency. To assess the constitutionality of equitable sharing, we must take a much
>closer look at its operation in practice. What is remarkable about the three empirical
>factors that led Jerrico to uphold the child labor prosecution is that in the forfeiture
>case, every one cuts the other way, and to an extreme degree. One could hardly design
>an incentive system better calculated to bias law enforcement decisions than the
>present forfeiture laws. Taking the Jerrico factors in order.
>Financial dependence: The ESA division of the Labor Department obtained no financial
>benefit from the penalties it assessed: the penalties collected totaled less than 1% of
>the ESA's budget, and because more than this amount was returned to the Treasury,
>they had not increased the ESA's funding at all. By contrast, numerous law enforcement
>agencies now rely on forfeitures to fund a significant part of their operations. The gross
>amounts are prodigious: By 1987 the Drug Enforcement Administration was effectively
>paying for itself, with seizures exceeding its annual budget.(99) Between 1985 and 1991,
>the Justice Department collected more than 1.5 billion in illegal assets;(100) in the next
>five years, the Justice Department almost doubled this intake, depositing $2.7 billion in
>its Asset Forfeiture Fund.(101) It appears that this forfeiture income is sometimes
>required to operate the Department, which has regularly exhorted its attorneys to
>make "every effort" to increase "forfeiture production" so as to avoid budget
>shortfalls.(102) Like concerns motivate state and local officials. A 1991 Justice
>Department memorandum observed that state and local law enforcement agencies were
>becoming increasingly dependent upon equitable sharing of forfeiture proceeds.(103)
>(As of 1994 the Department had transferred almost $1.4 billion in forfeited assets to
>these agencies.(104)) Similarly, a study of multijurisdictional drug task forces
>participating in the Byrne grant program found that these task forces had seized over
>$1 billion in assets between 1988 and 1992,(105) and that many of their commanders "
>expect to have to rely increasingly on asset forfeitures for future resources."(106)
>Personal interest: The degree of the prosecutor's "personal interest, financial or
>otherwise" also mattered to the court. Although the Justices found that the ESA
>Regional Administrators had no personal stake in the penalties they assessed, they did
>note that constitutional violations might have arisen had the arrangement injected a
>personal stake into the prosecutor's decisions. The revised forfeiture laws have now
>produced such a case: when a police department relies on a steady stream of forfeiture
>income to pay for its operations, as many now do, an officer's choice of who and what to
>target may mean the difference between a paycheck and a pink slip.(107) Anyone who
>doubts whether job maintenance qualifies as a personal stake should read the
>sociologist Northcote Parkinson's witty study on the subject.(108) There are carrots as
>well, including more generous working conditions or the use of seized assets from
>baseball gloves to automobiles.(109) Some police departments base promotions in part
>on the officer's success in asset seizures;(110) at least one city ordinance actually gives
>individual officers a personal share of the forfeiture take.(111)
>The funding formula: Finally, in Jerrico the court stressed that the statutory scheme
>reimbursed regional offices according to their expenses rather than their collections,
>providing no reason for regional offices to seek unreasonably large penalties. No such
>restraint exists in the asset retention statutes; the larger the seizure, the higher the
>reward for each participating office.
> * * *
>The three factors we have just discussed were dispositive in Jerrico because they were
>strong indicia that prosecutors were unaffected by the negligible financial stake the
>ESA might have in their penalty assessments. In the forfeiture case the same factors
>point in the opposite direction, strongly tempting a law enforcement agency to tailor its
>decisions to enhance institutional funding. Have law enforcement decisions actually
>been influenced and corrupted by this temptation? To answer this question, we need
>not merely extrapolate from the Jerrico indicia, or invoke economic models,(112) or rely
>on conjecture at all. We can instead directly examine the recent history of law
>enforcement activity. This record shows that the forfeiture reward system has done far
>more than stimulate zealous enforcement. Rather, it has grossly distorted police and
>prosecutorial priorities, infecting virtually every phase of the criminal justice system.
>The consequence is an often counterproductive, sometimes pernicious law
>enforcement agenda.
>At this point we focus only on those corrupted decisions that might be found to abridge
>the constitutional due process guarantee. We shall assume that this requires proof not
>only that the prosecution is contaminated by a significant conflict of interest, but also
>that the defendant or claimant suffered some legally cognizable prejudice as a result --
>for example, that she might not have been targeted, or treated as harshly, in the
>absence of the agencys financial interest.(113)
>Consider first police investigations. The shift in law enforcement priorities, from crime
>control to funding raids, is perhaps best revealed by the advent of the "reverse sting,"
>a now common police tactic that was rarely used before the law began channeling
>forfeited assets to those who seized them.(114) The reverse sting is an apparently lawful
>version of police drug dealing in which police pose as dealers and sell drugs to an
>unwitting buyer. The chief attraction of the reverse sting is that it allows police to seize
>a buyer's cash rather than a seller's drugs (which have no legal value to the seizing
>agency).(115) According to one participant in some reverse stings, "This strategy was
>preferred by every agency and department with which I was associated because it
>allowed agents to gauge potential profit before investing a great deal of time and effort.
>[Reverse stings] occurred so regularly that the term reverse became synonymous with
>the word deal."(116) Whether the suspects were engaged in major or trivial drug
>activity, and whether the strategy actually placed more drugs on the street, were of
>little if any import. Even if a sting targeted a drug dealer, the police might defer the
>operation until the dealer sold some of the drugs to other buyers in order to make the
>seizure incident to arrest more profitable.(117) Or law enforcement agencies might
>select their targets according to the funding they could provide rather than the threat
>they posed to the community. A Justice Department report proposed precisely this
>approach to multijurisdictional task force commanders, suggesting that as asset
>seizures become more important "it will be useful for task force members to know the
>major sources of these assets and whether it is more efficient to target major dealers or
>numerous smaller ones."(118)
>A similar motivation may underlie the otherwise baffling policy adopted in 1986 by both
>the New York City and Washington, D. C. police. Invoking 21 USC 881(a)(4), the policy
>directed police to seize the cash and cars of persons coming into the city to buy
>drugs.(119) The consequence of this strategy was that the drugs which would have been
>purchased continued to circulate freely. Patrick Murphy, formerly the Police
>Commissioner of New York City, explained the origin of this policy to Congress.
>Police, he said, have
>a financial incentive to impose roadblocks on the southbound lanes of I-95, which carry
>the cash to make drug buys, rather than the northbound lanes, which carry the drugs.
>After all, seized cash will end up forfeited to the police dept., while seized drugs can
>only be destroyed.(120)For prosecutors too, funding exigencies have pre-empted other
>considerations. One Department of Justice manual governing racketeering
>prosecutions, for example, suggests that prosecution may be contingent on the
>presence of forfeitable assets, rather than forfeiture being an incident of
>prosecution.(121) Consequently, prosecutors have become expert at learning about the
>presence of assets in cases under investigation, assessing their value and condition,
>and checking for liens on property. One issue that the Supreme Court will eventually
>have to decide is whether this is the kind of prosecutorial discretion which, in Jerrico's
>formulation, must not be immune from judicial scrutiny because "the enforcement
>decisions of an administrator were motivated by improper factors."(122)
>Consider also forfeiture's corrupting influence on the disposition of criminal cases.
>Ironically, as the Drug War was escalating during the 1980's and '90's, major efforts
>were underway to remove corrupt influences and unjust disparities from criminal
>sentences. The federal government and many states sought to accomplish this by
>rewriting their sentencing laws to specify the sentence that fit each crime and the
>criminal history of each offender.(123) But these sentencing reform laws have been
>largely undone in the drug area. (124) Forfeiture laws promote unfair, disparate
>sentences by providing an avenue for affluent drug "kingpins" to buy their freedom.
>This is one reason why state and federal prisons now confine large numbers of men and
>women who had relatively minor roles in drug distribution networks, but few of their
>bosses.(125)
>Investigations in several jurisdictions have documented that criminal defendants with
>the most assets to turn over to the authorities routinely serve shorter prison sentences
>and sometimes no prison sentence at all. In New Jersey, a defendant facing a "drug
>kingpin", 25 years-to-life indictment obtained a dismissal of that charge, and parole
>eligibility in five years on a lesser conviction, by agreeing to forfeit over one million
>dollars in assets.(126) In Massachusetts, a recent investigation by journalists found that
>on average "payment of $50,000 in drug profits won a 6.3 year reduction in a sentence
>for dealers," while agreements to forfeit $10,000 or more bought elimination or
>reduction of trafficking charges in almost 3/4 of such cases.(127) The Massachusetts
>prosecutors who were investigated have a compelling financial reason to recalibrate the
>scales of justice in this way because 12% their budgets are financed through forfeiture
>income.(128) And the Supreme Court has greatly facilitated this practice by finding no
>right to a judicial inquiry whether property relinquished pursuant to a guilty plea was
>properly subject to forfeiture.(129) As Justice Stevens noted in dissent, "it is not
>unthinkable that a wealthy defendant might bargain for a light sentence by voluntarily
>'forfeiting' property to which the Government had no statutory entitlement."(130) But
>these distorted, disparate plea offers remain untested under the due process right to an
>impartial prosecutor, and the most hopeful challenge may come from the asset-poor
>defendants who suffer the most in plea bargaining from the governments conflict of
>interest.(131)
>To illustrate how much the defendant may have at stake in uncorrupted law
>enforcement, we present a final example: the enlightening and appalling case of Donald
>Scott. Scott was 61 year old wealthy recluse who owned a 200 acre ranch in Malibu,
>California adjacent to a large recreational area maintained by the National Park Service.
>In 1992 the Los Angeles County Sheriff's Department received an informant's report
>that Scott was growing several thousand marijuana plants on his land. It assembled a
>team -- including agents from the Los Angeles Police Department, the Drug
>Enforcement Administration, the U.S. Forest Service, the California Air National
>Guard, the U.S. Border Patrol, and the California Bureau of Narcotic Enforcement -- to
>investigate the tip, largely through the use of air and ground surveillance missions.
>Despite several unsuccessful efforts to corroborate the informant's claim,(132) and
>despite advice that Scott posed little threat of violence,(133) the LASD dispatched a
>multi-jurisdictional team of 30 law enforcement officers to conduct a military-style raid.
>On October 2, 1992 at 8:30 a.m., the officers descended upon the Scott ranch to
>execute their search warrant. After knocking and announcing their presence, they
>kicked in the door and rushed through the house. There they saw Scott, armed with a
>gun in response to his wife's screams. With Scott's wife watching in horror, they shot
>and killed him. There were no marijuana plants anywhere on the land, and no drugs or
>paraphernalia in the house.
>Following Scott's death, the Ventura County District Attorney's Office conducted a five
>month investigation of the raid. The 70 page report found that there was no credible
>evidence of present or past marijuana cultivation on Donald Scott's property.(134) As to
>the search warrant, the report found that much of the information supporting the
>warrant was false, that exculpatory surveillance evidence was withheld from the judge,
>and that the Los Angeles County Sheriff's Department knowingly sought the warrant on
>legally insufficient information.(135) The search warrant "[b]ecame Donald Scott's death
>warrant," the report concluded, and Scott was unjustifiably, needlessly killed.(136)
>The targeting of Donald Scott, and the massive multijurisdictional police presence,
>cannot be explained as any kind of crime control strategy. Rather, as the Ventura
>County District Attorney's report concluded, one purpose of this operation was to
>garner the proceeds expected from forfeiture of the $5 million ranch. Among the
>documents distributed to some of the officers at the pre-raid briefing were a property
>appraisal of Scott's ranch, a parcel map of the ranch with a reference to the sales price
>of a near-by property, and the statement that if 14 marijuana plants were found then the
>ranch would be seized.(137) *
>Egregious cases like Donald Scott's underscore the difference between the statutory
>provision upheld in Jerrico and laws which encourage law enforcement agencies to
>finance themselves through aggressive, potentially violent police actions -- a difference
>that threatens liberty and even life in ways that no one can mistake for "due process of
>law." Moreover, for a court to find otherwise would betray one of the central concerns
>that led to the founding of our constitutional order. Financial incentives promoting
>police lawlessness and selective enforcement, in the form of the customs writs of
>assistance, were high on the list of grievances that triggered the American
>revolution.(138) Writs of assistance authorized customs officers to seize suspected
>contraband, and retain a share of the proceeds, often a third, for themselves and their
>informants.(139) From the viewpoint of the Crown, this incentive could help insure that
>goods landing in American ports were taxed or, if prohibited, confiscated. But for the
>colonists, it was an outrage that brought with it corrupt officials,(140) lawless
>seizures,(141) selective enforcement,(142) fabricated evidence,(143) extortionate
>agreements from subjects who had no effective legal recourse,(144) "and even the fatal
>consequences which may arise from the execution of a writ of assistance, only to put
>fortunes into private pockets."(145) From these complaints "the child Independence
>was born."(146) The same fundamental grievances are now lodged against our present
>forfeiture laws. What court can read such formative concerns out of the Constitution?
> B. Policy Objections
>There are many issues in the criminal justice field which set the constitutional rights of
>suspects against the security of the general population. The Drug War's economic
>incentive structure is unusual in that it threatens the due process of drug suspects and
>hinders effective law enforcement at the same time. When police target drug buyers
>rather than sellers in order to advance their own financial interest, for example, they
>brazenly ignore the public interest in both just, proportional punishment and drug
>reduction. Bad policy may not be unconstitutional, but it does demand reform -- in this
>case, obvious reforms which could be easily legislated if there were the political will to
>do so.(147)
>Imposing this conflict of interest on law enforcement endangers the public welfare in
>four critical areas. First, encouraging police to target assets undermines drug law
>enforcement strategies. Nominally forfeiture provides a way to remove contraband from
>circulation. But when fundraising prospects lead police to defer arrests until after drug
>sales,(148) when police prefer to target the least culpable offenders,(149) when
>prosecutors give leniency to those dealers with the largest assets, and when 80% of the
>people whose assets are seized are never charged,(150) we should suspect that the
>forfeiture payback provision is having the opposite effect. Virtually all drug
>enforcement decisions are subject to this economic temptation; heroin distribution may
>demand more enforcement, for example, but perhaps targeting cocaine dealers would
>be more profitable.(151) One commentator concluded that "forfeiture is shaping the
>core goals and policies of the [drug war]. . . .Asset forfeitures have become a legitimate
>alternative policy goal for law enforcement, . . . an end in themselves."(152)
>The forfeiture incentive exerts all the more influence because no clear drug control
>priorities have ever been formulated which might act as a restraint on single-minded
>fundraising. Because questioning any drug war campaign can be political suicide, its
>priorities have been rarely subject to rational public debate. Shrill political demands
>that everything must be accomplished immediately reduce to a directionless program in
>which nothing takes precedence. The euphemistic label attached to this abdication is a
>"zero tolerance policy," formally adopted by National Drug Policy Board on March 21,
>1988.(153) This "policy" has authorized virtually any law enforcement activity that has
>even the most tenuous connection to drug violations -- effectively a license to engage
>in unlimited asset seizures. Pursuant to it, the Customs Service and the Coast Guard
>have seized assets regardless of whether the owner was innocent, or whether he
>possessed merely a de minimis quantity of drugs; in May, 1988, for example, the Coast
>Guard seized a yacht valued at $2.5 million because it contained 1/10 of an ounce of
>marijuana.(154) Similarly, the Reagan "Just Say No" campaign equated casual,
>recreational marijuana use with the most desperate forms of drug addiction, making any
>and all law enforcement choices acceptable.(155)
>Second, by linking police budgets to drug law enforcement, both forfeiture laws and
>Byrne grants induce police and prosecutors to neglect other, often more pressing
>crime problems.(156) From the examples in the preceding section, it should be evident
>that law enforcement officials now make business judgments which can only compete
>with, if not wholly supplant, their broader law enforcement goals. The Department of
>Justice has periodically made this practice official policy, as in 1989 when all U.S.
>Attorneys were directed to divert resources to forfeiture efforts if necessary to meet
>their commitment "to increase forfeiture production":
>If inadequate forfeiture resources are available to achieve the above goals, [U.S.
>Attorneys] will be expected to divert personnel from other activities or to seek
>assistance from other U.S. Attorney's offices, the Criminal Division, and the Executive
>Office for United States Attorneys."(157)The asset retention law compounds already
>existing incentives that promote an inordinate emphasis on drug enforcement. For
>example, personal rewards often accrue to those police officers who most zealously
>enforce the drug laws. Because drug detail generally reaps large numbers of nighttime
>arrests and daytime court appearances for the arresting officer,(158) it is an avenue to
>both overtime pay (sometimes equaling base salary) and promotions (which are often
>linked to arrest rates).(159) This both channels officers into drug enforcement and pits
>their personal interest against non-criminal, community-based alternatives to arrest.
>Police forces desperately pursuing drug offenders are, of course, just the beginning of a
>spiral that is spinning out of control. To complete the picture, one must also examine
>the non-drug crimes that go unprevented or uninvestigated, the court hours diverted
>from other kinds of cases,(160) the rejection of non-criminal approaches to dealing with
>the drug problem, and much more. Unfortunately, Congress has diligently avoided
>examining these issues.
>This brings us to a third casualty of the funding methods we have described: the
>subversion of any serious legislative debate on our drug policy, and particularly on how
>heavily it should rely on law enforcement rather than alternative non-criminal
>strategies. There is, for example, an enormous body of research to show that treatment
>is several times more effective in reducing drug consumption than interdiction and
>other policing.(161) Yet from the beginning national drug policy has overwhelmingly
>emphasized law enforcement rather than treatment, education, or other non-criminal
>approaches. Out of approximately $15 billion in federal Drug War funds, approximately
>2/3 is dedicated to law enforcement and interdiction.(162)
>Meanwhile the slim budgetary allotment for the Substance Abuse and Mental Health
>Administration's prevention and treatment programs was cut by about 60% in
>1996.(163) The forfeiture incentive --- along with Byrne funding, the additional monetary
>and career rewards that flow to police officers who make drug arrests,(164) and a
>mushrooming prison-dependent economic sector(165) -- assures the existence of a
>powerful lobby to maintain this imbalance.(166) As we demonstrate in Part IV, this lobby
>has been able to soundly defeat the few Congressional efforts to divert some drug law
>enforcement funding to other uses.
>Our law enforcement emphasis has not diminished the drug problem, but it has
>produced a prison problem of staggering proportions. With a five fold increase in the
>number of incarcerated drug offenders over the last decade,(167) the Drug War has
>made the United States the second most incarcerated population in the industrialized
>world, after Russia.(168) Over ten years we have doubled our prison population to 1.6
>million inmates, requiring the addition of 1600 new prison beds each week.(169) None of
>this has affected the spread of serious addiction among school dropouts, gang
>members, and the poor, except by siphoning away funds that might be used for drug
>education, treatment, or the amelioration of the hardships that make drug abuse look
>attractive.
>Fourth and finally, the economic rewards offered by both the forfeiture and Byrne grant
>laws are so large that some police are tempted to pursue them illegally when
>necessary.(170) A recent federal civil rights case brought against several task force
>officers strikingly illustrates the corrosive operation of these incentives. In United State
>v. Reese,(171) the Court described a task force criminally deformed by its dependence
>on federal drug money. Existing as a separate unit within the Oakland Housing
>Authority, the task force operated, in the words of one member, "more or less like a
>wolfpack", driving up in police vehicles and taking "anything and everything we saw on
>the street corner."(172) According to the Court, the commander, Daniel Broussard,
>regularly exhorted Task Force officers to keep their arrest numbers up. All the officers
>were aware that the federal grant that funded their unit, and on which their jobs
>depended, was good for only eighteen to twenty-four months. Broussard warned that
>they would need statistics to show that the federal money was well spent and thus to
>secure another grant. On more than one occasion, he sent the Task Force out to begin
>a shift with comments like, "Lets go out and kick ass," and "[E]verybody goes to jail
>tonight for everything, all right?"(173)Oaklands Drug Task Force is far from unique.
>Reporters and investigators have documented numerous other instances of police
>departments engaging in illegal searches, threats, and other lawless conduct in search
>of forfeitable cash. After viewing videotapes of approximately 1,000 highway stops, two
>Florida reporters found that police had used traffic violations as a pretext to confiscate
>"tens of thousands of dollars from motorists against whom there [was] no evidence of
>wrongdoing," commonly taking the money without filing any criminal charges.(174)
>Other police departments have systematically seized any cash that a suspect cannot
>show is unrelated to a drug transaction.(175) A Los Angeles Sheriffs Department
>employee reported that deputies routinely planted drugs and falsified police reports to
>establish probable cause for cash seizures.(176) Louisiana police engaged in massive
>pretextual stops, with the seized money diverted to police department ski trips and
>other unauthorized uses.(177) Many of these police undertook such lawlessness not to
>provide illicit personal income, but to further their agencys financial well being. As we
>note below, the Drug War has also fostered the more traditional kinds of police
>corruption and private graft that particularly thrive in the surreptitious, informant-laden
>world of anti-drug operations.(178)
>
>III. THE ACCOUNTABILITY OBJECTIONS TO SELF-FINANCING
>POLICE AGENCIES
>
> A. The Separation of Powers Objection
>
>We turn now to a second fundamental problem with self-financing law enforcement
>agencies: unaccountability. Agencies that can finance themselves through asset
>seizures need not justify their activities through any regular budgetary process. As a
>Justice Department report notes, "one 'big bust' can provide a task force with the
>resources to become financially independent. Once financially independent, a task force
>can choose to operate without Federal or state assistance."(179)
>When this happens, the predictable consequence is a degree of police secrecy and
>independence that brings with it some of the risks civil libertarians associate with the
>term "police state." We do not mean to imply that police now exercise unlimited power
>in the United States, but we do believe that the escalating presence of this new kind of
>police agency will prove increasingly dangerous to our nation's liberty if unchecked.
>The longer we ignore this problem, the more entrenched and intractable it will become.
>As with the conflict of interest problem in the preceding section, police unaccountability
>invokes both constitutional and policy objections. We explore the latter concerns in
>Part II(B). In this section we argue that independent, self-financing law enforcement
>agencies violate both the appropriations clause and the separation of powers framework
>that the clause was designed to support, as follows.
>Under Art. I, sec. 9, cl. 7, Congress is vested with exclusive appropriations power.(180)
>Along with supporting statutes -- including the Miscellaneous Receipts Act (which
>requires all funds collected to be deposited in the public treasury, subject to
>exceptions(181)), the Anti-Deficiency Act (which bars a government employee from
>authorizing or incurring an obligation without a Congressional appropriation(182)), and
>the prohibition against augmentation (which bars an agency from exceeding the amount
>appropriated with third party funding(183)) -- the Appropriations Clause assures that
>government income cannot be spent until a specific Congressional appropriation
>releases it.(184)
>By contrast, under 28 U.S.C. 881(e)(2)(B) money seized by a federal agency is
>deposited in the Department of Justice's Asset Forfeiture Fund, where it is then
>available to the Department and other federal agencies for drug law enforcement and, in
>some cases, funding prisons.(185) This arrangement bypasses the Treasury, leaving the
>Justice Department free to determine the contours of its own budget. The Justice
>Department, the DEA and other federal law enforcement agencies have essentially
>been given the freedom to fund themselves in whatever amount their agents can legally
>seize. The constitutional questions are whether this kind of blank check comports with
>section 9 and, more broadly, the constitutional scheme of separate powers which serve
>to check and balance each other.
>The complication is that this blank check was issued by Congress, and in theory it can
>terminate the privilege at any time. This generates two alternative possible
>interpretations: sec. 881 might be deemed either an exercise of the Congressional
>appropriations power,(186) or it might be considered an unconstitutional transfer of this
>power to the executive branch. Obviously executive agencies must exercise
>legislatively delegated power, but just as obviously there must be limits of degree or
>the organizing principle of the constitutional structure, the separation of powers, could
>be lawfully destroyed.(187)
>In theory the non-delegation doctrine is designed to discern this limit. The doctrine
>recognizes that legislative delegations are sometimes necessary because
>administrative agencies are better able to provide expertise, or the expeditious and
>flexible responses which may be required to adequately regulate an area. (188) But to
>insure that legislative power remains with the Congress, and that lawmaking does not
>devolve into the promulgation of ad hoc rules by non-elected administrators, the
>doctrine requires that agency action be tethered to the legislature's defined ends.(189)
>To accomplish this, a statute delegating Congressional power must provide "intelligible
>principles" sufficient to channel agency discretion and provide a basis for judicial
>review of the exercise of that discretion.(190) In the 1930's, the Supreme Court struck
>down a series of legislative delegations unaccompanied by such guiding standards.(191)
>But although the Supreme Court subsequently invoked the doctrine, and sometimes
>construed statutory delegations narrowly in order to comply with its requirements,(192)
>the Court did not again find a delegation of legislative power unconstitutional for almost
>half a century. Scholars came to regard the idea of an unconstitutional legislative
>delegation as something of an oxymoron, but in the 1980's and 90's the non-delegation
>doctrine has been showing new signs of life. In the "Benzene case,"(193) an
>occupational health and safety standard promulgated by the Secretary of Labor was
>struck down as exceeding the executives lawfully delegated authority.(194) Two years
>later in INS v. Chadha the Court overturned a delegation of legislative power to one
>House, finding it offended both the presentment clause and the bicameral structure of
>Article I.(195) In 1995, the Eighth Circuit applied the non-delegation doctrine to
>overturn a statute authorizing the Secretary of Interior to acquire land in trust for
>Indian tribes; it found that the standardless delegation created "an agency fiefdom
>whose boundaries were never established by Congress...It is hard to imagine a
>program more at odds with separation of powers principles."(196) This past April the
>U.S. District Court for the District of Columbia declared the Line Item Veto Act
>unconstitutional because Congress had ceded non-delegable, basic legislative functions
>to the President.(197) A divided Supreme Court reversed this decision three months
>later on grounds that the President had yet to exercise his first line-item veto, and
>therefore the plaintiffs had not yet suffered any injury providing standing to sue.(198)
>The Court's ultimate decision on the merits, briefly delayed but inevitable, will provide
>at least some clues to its present thinking on the non-delegation issue. At this point it
>appears clear that the pendulum is gaining momentum in this new direction as Justices
>Rehnquist and Scalia,(199) along with numerous constitutional scholars,(200) argue for a
>more vigorous application of the non-delegation doctrine.
>If some delegations of legislative power are constitutionally suspect, giving law
>enforcement agencies the opportunity to set the size of their own budgets through
>police seizures must be one of them. By issuing this blank check Congress has
>alienated the vital legislative function assigned to it by the Appropriations Clause:
>specifying the size and nature of the government's activities. To see this, one must
>recognize that an appropriation is not simply a procedural mechanism by which funds
>are released, but a substantive determination by the legislature of the relative worth of
>the program it funds. This understanding of the appropriations process, as a budgetary
>mechanism by which Congress shapes the activities of the federal government, has
>prevailed from the Constitution's inception to the present day.(201) To constitutional
>scholar Kate Stith, one consequence is that the appropriations function imposes
>an obligation on Congress itself. Congress has not only the power but also the duty to
>exercise legislative control over federal expenditures...In determining whether a grant
>of spending authority is a constitutional appropriation...[w]hat matters is whether
>Congress in fact determines how much funding for a government activity is
>"appropriate."(202)This is precisely what Congress did not do when it enabled law
>enforcement agencies to fund themselves with whatever assets they might lawfully
>seize. As former Attorney-General Richard Thornburgh has noted, "its now possible
>for a drug dealer to serve time in a forfeiture-financed prison after being arrested by
>agents driving a forfeiture-provided automobile while working in a forfeiture-funded
>sting operation."(203) In other words, law enforcement activities and resources are now
>unconstrained by any legislative determination of an appropriate budgetary level. This
>wholly thwarts sec. 9's constitutional function as defined by the Supreme Court, which
>is "to assure that public funds will be spent according to the letter of the difficult
>judgments reached by Congress as to the common good and not according to the
>individual favor of Government agents..."(204)
>Our claim here is not that the Appropriations Clause requires Congress to specify a
>definite budgetary figure for executive agencies, or do so yearly. As Stith argues,
>Congress may permanently authorize the expenditure of an indefinite sum to be fixed
>by later events(205) (such as the sum necessary to finance the national debt,(206)
>entitlement obligations,(207) or contract obligations incurred by an agency pursuant to
>Congressional authorization(208)) so long as it reflects a decision by Congress that the
>formula will result in the appropriate degree of funding and, therefore, agency
>activity.(209) This could be the case even if Congress has authorized an agency to
>collect fees and utilize them for its operating budget, as when it decides a government
>service should be provided in proportion to the market's demand for it.
>(Consumer-generated revenue retained by the Postal Service, Amtrack, the Park
>Service and the SEC are examples).(210) There is a constitutional chasm, however,
>between a Congressional appropriation deliberately designed to size an agency
>according to market demand, and a law effectively allowing a law enforcement agency to
>decide for itself what its size and resources will be. In the latter case, Congress has
>shed its obligation to set the purposes and amounts of government expenditures,
>transferring this legislative policy decision to self-interested administrators in the
>executive branch.(211) That the executive branch has used the asset retention law to
>supplement its federal law enforcement budget by billions of dollars,(212) in an area
>substantially immune to Congressional oversight except through exercise of the
>appropriations power,(213) underscores the importance of returning this power to the
>Congress.
>Measured against the kinds of Congressional delegations of power which have been
>upheld, the asset retention scheme is extreme, and outside any constitutional rationale.
>None of the reasons that courts have found to justify a delegation(214) pertain to a law
>allowing the Justice Department to write its own budget, which is no different in any of
>these respects than the other appropriations Congress enacts without undue difficulty.
>And even were a delegation of the appropriations function warranted, here it is
>unaccompanied by any "intelligible principles" to guide agency discretion, or any other
>means of legislative control over the size and scope of the agency's budget: the asset
>retention law is devoid of any spending ceilings, time limits, funding formulas,
>meaningful reporting requirements, or Congressional review procedures.(215)
>These comparisons, however, are largely beside the point. An inquiry focusing on
>whether this delegation is "excessive" or the standards "inadequate" is misdirected
>when Congress has transferred a basic legislative function that cannot be delegated at
>all. As the courts have recognized, Congress cannot delegate its basic legislative
>powers because doing so would dismantle the essential constitutional structure of
>balanced, co-equal branches.(216) In this case, by ceding to the executive part of its
>"unquestionably exclusive" appropriations power,(217) Congress has abandoned what
>Corwin described as "the most important single curb in the Constitution on
>Presidential power."(218) The prospect of a self-financing law enforcement branch,
>largely able to set its own agenda and accountable to no one, presents the kind of
>dangers one of the framers, George Mason, must have had in mind when he warned
>that "the purse and the sword ought never to get into the same hands, whether
>legislative or executive."(219)
>
> B. Policy Objections
>
>Suppose we are wrong, and the Appropriations Clause poses no constitutional obstacle
>to law enforcement funding itself through self-help. Should Congress continue to
>authorize potentially independent law enforcement agencies that need not justify their
>activities to the taxpayers, their elected representatives or any budgetary authority? To
>us it is self-evident that agencies privileged to arrest, seize property and use even
>deadly force pose special risks that warrant greater safeguards and scrutiny, not less.
>For this reason, the forfeiture self-funding mechanism poses a double threat: the risks
>of abuse that flow from this financial incentive are multiplied because no one is
>watching.
>We need not reiterate here the kinds of abuses and policy problems discussed in Part I.
>It is useful, however, to document the remarkable degree of unaccountability drug law
>enforcement now enjoys. The asset retention law did not create the this problem, or the
>uncontrolled agencies and rogue officers that are endemic to drug law enforcement. But
>it did add a great deal of fuel to the fire. To illustrate this, we detail some of the
>activities of the multijurisdictional drug task forces that have proliferated in the past
>decade. They reveal that while the forfeiture and drug prohibition laws have not solved
>America's drug problem, enforcing them has sown a significant police problem.
>Most multijurisdictional task forces are offspring of the Byrne program, but once
>created they may achieve an independent life of their own. The block grant concept
>minimizes Congressional oversight,(220) and federal participation in the Byrne-funded
>task forces is uncommon.(221) In theory, a multijurisdictional drug task force is tied to
>state budgetary allocations and oversight, as the law requires states to match the
>federal grant with 25% state funding.(222) But states may satisfy this requirement with
>forfeiture money seized by the task force,(223) thereby eliminating any need for the task
>force to justify its activities to a state or local authority. Indeed, if the forfeiture intake
>is high enough, federal Byrne grant money can also be phased out, and the task force
>may become a self-financing, self-perpetuating and independent entity.(224) Between
>1988 and 1992, Byrne-grant funded multijurisdictional task forces seized over $1 billion
>in assets.(225)
>Multijurisdictional drug task forces may elude meaningful oversight for two additional
>reasons. First, they are tied to no local constituency. The combination of state, local and
>possibly federal agencies divides responsibility, encourages buck passing and leaves no
>particular elected government in control. It also promotes jurisdictional game playing:
>if local police do not like their state's asset distribution scheme, or if state law would
>bar a seizure, federal involvement allows them to nullify the state's efforts to regulate
>their activity.(226) Second, drug task forces are engaged in the enforcement of so called
>victimless crimes, where there is no aggrieved individual to inform the police what
>happened. Consequently, task forces must operate surreptitiously at the margins of
>legitimate activity, utilizing undercover police, spies, informants, stings & entrapment.
>Such secret and deceptive activities further complicate any effort to make task forces
>accountable, while simultaneously inviting corruption.
>How have task forces exercised their freedom? Of course, one obstacle to answering
>this question is that the very unaccountability of the task forces makes it difficult to
>monitor what they do.(227) Their actual operations are inevitably murky. The best,
>though flawed, evidence we have comes from the task force commanders themselves,
>via a nationwide survey conducted in 1993.(228) Prefaced with a disclaimer that "little is
>known about the range of tactics being employed by task forces, how frequently they
>are used, or how often task forces change their tactical approaches to
>enforcement,"(229) the survey nevertheless conveyed some rudimentary knowledge of
>task force activities. It found that tactics commonly used include buy-busts, reverse
>stings, street sweeps, undercover operations and confidential informants.(230)
>Additionally, slightly over 30% of task force commanders said they were using novel
>tactics, such as:
>"enrolling youthful-looking officers to perform undercover work in high schools, using
>college students as operatives in universities . . . and placing undercover officers in jail
>with known drug users and dealers . . .
>"[targeting] public events such as sporting matches and concerns to identify and arrest
>drug offenders . . . .
>"operating hotel/motel programs where narcotics officers interact regularly with
>hotel/motel personnel to detect drug activity and identify suspects . . .
>"[operating] business fronts, often in high drug activity areas, to purchase drugs and
>identify drug dealers. Fronts include a travel agency, gamerooms, pool halls, a car
>dealership, bars, and a chemical company . . . .
>"[establishing] drug hotlines with toll free, 24 hour numbers so citizens can call in
>anonymous tips on drug dealers and drug activity . . . Some pay rewards for useable
>information . . .
>"The few task force commanders who reported intercepting suspects garbage indicated
>they thought these efforts were quite successful in producing evidence leading to
>search warrants . . . .[Less frequently reported tactics included] trading food stamps for
>drugs enabling MDTFs to prosecute through the federal system."(231)With little
>oversight and a lot of money, task forces might be expected to develop just such
>aggressively unconventional techniques to prosecute the drug war. Yet despite these
>efforts, and the attendant prodigious seizures of assets and drugs (primarily
>cannabis(232)), the five year review concluded that "[i]t is not clear...whether task
>forces have been an effective deterrent to either the street- or mid-level dealers."(233)
>Not surprisingly, the commanders' survey did not reveal any management or corruption
>problems. But it is increasingly apparent that task forces are plagued by these
>problems. One example came to light in 1996, when almost $66,000 was discovered
>secreted in the former headquarters of the Western Area Narcotics Task Force
>(WANT) in Paducah, Kentucky.(234) An inquiry followed to determine where the money
>came from and figure out what to do with it.(235) Investigators learned that the task
>force had seized large amounts of money which it then used for whatever purposes it
>wished, unconstrained by audits, reporting requirements or its mission.(236) This
>problem is endemic to forfeiture beneficiaries, from the Justice Department on
>down.(237)
>The investigation has shed light on the routine operations of this task force, and
>probably many others as well. Both seizures and expenditures were largely lawless.
>Like other task forces,(238) WANT made asset seizures a priority, and mandated
>expected forfeiture growth rates.(239) But WANT met its quotas with much more zeal
>than care. The police chief estimated that 60% of the money found in WANT
>headquarters will be returned to the owners because it was not properly seized.(240)
>Often the seizures had no nexus to any drug transaction. Arrests were delayed for as
>long as weeks and months, at which point the police took whatever they found on or
>near the defendant at the time -- even though there was no connection between the
>seized property and the now distant drug transaction for which they were being
>arrested.(241) Some seizures were as small as eight cents.(242) Another seizure of 93
>cents showed "once again that the officers were taking whatever the suspects were
>carrying, even though by no stretch could pocket change . . . be construed to be drug
>money."(243)
>The subsequent handling of seized assets was equally lawless. WANT refused to
>deposit money into a special account through the city's Finance Department. It
>maintained no system to record seizures, identify particular assets seized with its
>owner, or indicate whether it had been forfeited.(244) Kentucky's asset distribution
>formula was disregarded,(245) and cash was retained by the task force in vaults, boxes,
>bags, lockers and envelopes. One can only speculate on how the money was used, but
>earlier reports had criticized WANT for improperly diverting its grant money to
>investigate non-drug activity and cover cost overruns,(246) and diverting personnel and
>equipment to surveil elected officials and private citizens for what looked like
>vindictive reasons.(247)
>The discovery of secreted cash provoked a major media scandal in Kentucky, but
>despite the predictions of some task force members that WANT's history would mark it
>for termination, WANT survived, changed its name, and prospered. Its 1996 federal
>grant was increased by almost $100,000 over the previous year, to $320,000, with local
>agencies contributing an additional $150,000.(248) Under new direction and with an
>increased staff and budget, the re-christened Jackson Purchase Area Drug Task Force
>is ready to resume fighting the war on drugs. Paducah's mayor remarked, "They gave
>us all we asked for...I don't know exactly what caused it to happen that way...I think we
>will see new horizons open for the task force, larger scale operations."(249)
>The new forfeiture laws have promoted these police abuses and, by abandoning
>budgetary oversight, helped insulate them from scrutiny. Drug law enforcement does
>not need these additional problems. It is already plagued by a higher degree of
>lawlessness and corruption than any other area of law enforcement.(250) Its reliance on
>informants and undercover work place officers in intimate contact with criminals, money
>and drugs, while simultaneously shielding their activities from public view. For
>dishonest officers these circumstances are tantamount to a license to steal, deal drugs,
>plant evidence, or perjure themselves with impunity.(251) Defendants are unlikely to
>benefit from complaining about police theft of their drugs or money, and otherwise
>honest officers who learn of police illegality confront intense institutional pressures not
>to report fellow officers.(252) It may be that such problems are intractable, but there is
>no reason for state and federal governments to exacerbate them by relinquishing
>whatever controls and budgetary oversight they possess.
>
>IV. REMEDIES AND PROSPECTS
>
>The logic of Supreme Court decisions leads easily to the conclusion that self-financing,
>potentially independent law enforcement agencies are constitutionally objectionable, on
>both due process and separation of powers grounds. But in each case the Supreme
>Court would have to take a step into territory that it has left relatively unexplored.
>Whether the present Supreme Court would do so is speculation at this point. Although
>most forfeiture law reform challenges have failed, the Court has recognized that
>forfeiture "can be devastating when used unjustly"(253) and that "it makes sense to
>scrutinize governmental action more closely when the state stands to benefit."(254)
>Some of the justices are committed to strengthening property rights,(255) or restricting
>legislative delegations to the executive(256) -- legal values entirely at odds with the
>present forfeiture laws. Critics of the present system also may be heartened by the
>increasingly vocal concern expressed by observers across the political spectrum --
>from the ACLU(257) to Justice Thomas,(258) and including the former Associate
>Director of the Justice Department's Asset Forfeiture Office(259) -- that forfeiture laws
>prompt some police and prosecutors to target assets rather than crime.
>If the Supreme Court is unresponsive to constitutional claims regarding asset
>retention, there are other, less direct litigative strategies to limit the abusive
>application of Sec. 881. A significant 1993 Supreme Court decision, Austin v. United
>States, (260) has the potential to do so, although whether this potential will be realized is
>not yet clear. In Austin, the Court held unanimously that civil forfeitures are subject to
>the Eighth Amendment's prohibition on excessive fines. This is an important limitation
>because on its face, sec. 881 would seem to allow forfeiture of any property, no matter
>how valuable, if it could be linked to even a minor drug violation.(261) Civil forfeiture
>formerly was thought not to implicate the excessive fines provision because it was
>labelled civil. In Austin, however, the Court found that forfeiture constitutes
>punishment regardless of whether it is considered civil or criminal, and therefore is
>subject to the Eighth Amendment.(262) Presumably the Austin holding will now provide
>recourse for a family whose home was seized because a teenage son had sold "nickel
>bags" in his bedroom. The Supreme Court did not announce a test of excessiveness,
>however, leaving that task to lower courts. Which test ultimately prevails will
>determine whether the Eighth Amendment provides a meaningful constraint.(263)
>Other more speculative litigative strategies are beyond the scope of this article. We
>merely note that as forfeiture law and constitutional doctrine continue to develop,
>possible challenges may be grounded in the ethical constraints that govern
>prosecutors(264) or doctinal limitations on "outrageous governmental conduct"(265); or
>in the Supreme Courts emerging doctrines designed to protect states rights against
>national power. Given the Supreme Courts rapidly increasing interest in the latter
>issue, there may come a time when the adoptive forfeiture law -- which permits local
>police departments to combine with the federal government in order to circumvent
>their own state forfeiture laws -- is ripe for effective challenge on federalism
>grounds.(266)
>Legislative reform efforts should also be pressed, especially because it appears highly
>likely that the 105th Congress will enact some measure of forfeiture reform in the
>coming year.(267) Within Congress, Representatives as diverse as Hyde, Conyers, and
>Frank united in support of one bill that would institute some badly needed due process
>protections for persons whose property is seized. Based on proposals Congressman
>Hyde has been introducing since 1993, this bill would make the forfeiture laws fairer by
>strengthening the innocent owner defense, shifting the burden of proof, and removing
>procedural obstacles to contesting forfeiture in court.(268) Outside Congress, a
>broad-based coalition supports these procedural changes, including the National
>Association of Criminal Defense Lawyers, the American Bar Association, the American
>Civil Liberties Union, the Cato Institute, and even, to some extent, the Justice
>Department; but the Hudge Bill has lost the support of many forfeiture critics because
>its most recent incarnation added provbisions that would greatly expand the reach of
>forfeiture law. (269)
>Moreover, pending forfeiture reform bills do not include any measures to rectify
>equitable sharing and other asset distribution provisions, or the conflict of interest and
>accountability problems that result, largely because of the continued, vigorous
>opposition of law enforcement.(270) Congressman Hyde has omitted asset allocation
>reform from his bill despite its importance because, he says, "the financial
>considerations involved in the present federal adoption system mean unyielding
>opposition from law enforcement officials at all levels to any change in the law...."(271)
>Representative Hyde's reluctance reflects his Congressional experience. On the few
>occasions when Congress considered laws that would reduce the Drug War income
>stream, law enforcement wielded its abundant political power to soundly dispose of the
>threat.
>The first such case occurred in 1988, after Congress passed a law requiring that Justice
>Department transfers of forfeited assets to a state be allocated according to the state
>forfeiture law's asset distribution formula. This amendment was designed to prevent
>local agencies from conspiring with the Justice Department to circumvent state
>forfeiture laws, which often earmark at least some of the assets for purposes other than
>law enforcement. By 1988, many police officials had learned that they could retain a
>larger percentage (at that time, 85%) of the assets by "federalizing" their seizures
>through Justice Department adoption and bypassing their own state's law. Congress
>responded by eliminating this option to escape state requirements,(272) but its reform
>was short-lived. Under law enforcement pressure, Congress repealed the amendment
>before it could take effect. In its place, Congress substituted language requiring the
>Attorney General to "encourage further cooperation between the recipient State or
>local agency and Federal law enforcement agencies"(273), even though it is precisely
>this cooperation that is nullifying the state forfeiture distribution laws. A second,
>subsequent attempt also "went nowhere," according to its sponsor, "because law
>enforcement rallied and convinced everybody they needed those cuts of the pie."(274)
>Law enforcement rallied again in 1994 and 1995, when Congress considered a Clinton
>Administration proposal to eliminate Byrne grants from the 1995 budget and substitute
>the funding of 100,000 additional police positions. Law enforcement agencies greatly
>preferred the Byrne program, and launched a well organized campaign to prevent the
>Byrne grant cut.(275) Byrne grant money can be used to make more money through
>asset forfeiture, which makes law enforcement resistant to proposals which would kill
>the golden goose by diverting drug war money to other law enforcement uses.
>Additionally, many existing Byrne-funded drug enforcement jobs were at stake, as the
>New Jersey Attorney General testified.(276) In the end, the law enforcement lobby
>succeeded in obtaining full funding of both the Clinton police jobs bill and the Byrne
>grant program. It even persuaded Congress to amend the program to allow continued
>funding of individual task forces beyond the 48 month limit Congress had earlier
>imposed to assure the grants would serve as seed money only.
>This year the Justice Department has again circled the wagons around its Asset
>Forfeiture Fund, this time lobbying against a Congressional proposal to appoint counsel
>for indigent claimants with money from the Fund.(277)
>Congressman Hyde has concluded that at this point no legislation can prevail "that will
>take hundreds of millions -- indeed, billions -- of dollars away from the Justice
>Department and state and local agencies -- away from the war on drugs."(278)
>Nevertheless, unless Congress wants to abandon any hope of regaining control over
>the drug war bureaucracy it has created, it had better try to do so sooner rather than
>later.
>The most obvious federal reform, and one that would cure both the conflict of interest
>and accountability hazards of the present system, would require forfeited assets to be
>deposited into the Treasury's general fund. This one measure would restore
>Congressional budgetary oversight, and remove the incentive for police departments to
>distort their agendas for budgetary reasons. An alternative, identical in effect, would
>require that a law enforcement agency debit the value of any forfeited assets it retains
>from the budget it receives through Congressional appropriation.
>If Congress cannot or will not enact these fundamental reforms, there are lesser but
>crucial steps it might take to ameliorate the particularly destructive impact of the
>adoption procedure. Adoption serves to provide police with a means of manipulative
>forum shopping without furthering any other, more legitimate purpose. Although we
>have seen how powerful the opposition can be, Congress should revisit this adoption
>law and either (1) repeal it, or (2) amend it to require that money given back to the
>states after an adoptive forfeiture be allocated according to state forfeiture law.(279) A
>third alternative would prohibit the Justice Department from adopting a state forfeiture
>until a state court considers whether circumstances exist that justify bypassing the
>state forfeiture law.
>Many state forfeiture laws also promote self-aggrandizing police practices and should
>be reformed. As detailed in the Table of State Asset Distribution Requirements (see
>Appendix), very few states replicate federal law in channeling virtually all forfeited
>assets to law enforcement.(280) But those that do, and those that provide law
>enforcement with a direct and substantial share of the assets they seize, promote the
>abuses we have discussed. One leading reform organization, the National Conference of
>Commissioners on Uniform State Laws, has produced a model forfeiture act for states
>to consider. Its 1994 Uniform Controlled Substances Act (UCSA) mandates that
>forfeitures proceeds be deposited in the state Treasury's general operating fund and
>subject to ordinary appropriation requirements because "....earmarking funds [for law
>enforcement] risks skewing enforcement and prosecutorial priorities..."(281) During
>three years of debate leading to this provision, Commissioners noted the "abuses. .
>.arising because millions and millions of dollars are going to people who may or may not
>be responsible and certainly are not accountable,"(282) and the danger of "revolving
>funds where [expenditures do not] receive the review of the elected representatives of
>the people."(283) When prosecutors on the Commission were unable to block inclusion
>of this provision, they resigned and formed a separate organization to draft their own
>model forfeiture statute.(284)
>No state law reform can be effective, however, so long as federal adoption continues to
>provide an escape route from state requirements. In proposing that state forfeitures be
>directed into the general fund, the Conference of Commissioners noted that without
>concurrent federal law reform "all forfeitures will go under federal law."(285)
>Can these reforms be achieved? In proposing the above reforms, we do not
>underestimate the enormous obstacles to restructuring the asset distribution scheme,
>however obvious its destructive impact. Success will come, if at all, when the critics of
>self-financed police forces are able to focus public attention on the abuses and dangers
>that have thus far escaped sustained scrutiny.
>
>CONCLUSION
>
>When Congress fundamentally restructured the forfeiture laws by allowing agencies to
>keep most of the assets they seize, it did so without considering the very substantial
>costs of these amendments to both the public welfare and the justice system. Now,
>more than a decade later, Congress can draw on an extensive and disturbing history to
>reassess the wisdom of these laws. This history is neither subtle nor ambiguous.
>Together with the narrow drug enforcement focus of the revised federal law
>enforcement aid program, the asset retention law has wrought a dramatic shift in police
>motivation, towards practices which seriously undermine rational law enforcement
>efforts. As we have seen, many police agencies choose law enforcement strategies that
>can take fullest advantage of federal forfeiture laws, circumvent their own state
>forfeiture laws, and maximize property seizures, reducing fairness and crime control
>issues to an afterthought. Even the alleged mission of the Drug War may become
>secondary; failed policies are immune to reform because they sustain and profit the law
>enforcement agencies enlisted in this war.
>Police abuses and warped law enforcement policy are only one half of this disturbing
>story. We have also argued that police self-financing raises serious accountability
>concerns, and threatens to establish a sector of permanent, independent and
>self-aggrandizing police forces. This might sound promising to Colonel North or
>General Pinochet, but it should not be mistaken for a legitimate organ in a democracy.
>The institutional mechanisms we have explored are but one part of an anti-drug
>mobilization that continues to have profound effects on the liberties and well-being of
>our people. We sink more deeply into this war year by year, failing to adequately
>examine or comprehend the choices we are making.(286) Today commentators urge
>that we close the "revolving prison doors", unaware that we already incarcerate far
>more people for longer time than almost every other industrialized country.(287) Our
>politicians speak casually of enlisting the military, the National Guard and the CIA to
>keep drugs away from the Americans who seek them,(288) while from the other
>direction Mayor Guiliani stations New York drug police in the Dominican Republic.(289)
>We routinely deploy numerous federal agencies, and massive numbers of federal and
>state agents, in military-style raids against low level drug dealers.(290)
>All of these changes, mostly unimaginable a generation ago, are largely the products of
>25 years of trying (and failing) to "win" the War on Drugs. The first step towards
>recovery, which cannot come too soon, is to look at what we have done to ourselves,
>and what kind of institutions we have built, on the way to a "drug-free" society.
> FOOTNOTES
> 1. Justice Research and Statistics Association, Multijurisdictional Drug Control Task
>Forces: A Five Year Review, 1988-1992 9 (Oct., 1993).
>2. "Article, probably by James Otis, in the Boston Gazette for 4 January 1762,"
>reprinted in M. H. Smith, The Writs of Assistance, App. M at 562, 565-566.
>3. In 1973, the Administration created the Drug Enforcement Administration to
>prosecute its "declared[,] all-out, global war on the drug menace." Message from the
>President of the United States Transmitting Reorganization Plan No. 2 of 1973,
>Establishing a Drug Enforcement Administration, H.R. Doc. No. 69, 93rd Cong., 1st
>Sess. 3 (March 28, 1993).
>4. President Reagan reaffirmed his administration's "unshakable commitment to do
>what was necessary to end the drug menace." President's Message, 18 Weekly Comp.
>Pres.Doc. 11311, 1313-1314 (Oct 14, 1982). Later, President Bush appointed a drug
>"czar," William Bennett, who among other things sought the death penalty for those
>who sell drugs. Philip Shenon, Administration Offers a Tough New Drug Bill, N.Y.
>Times, May 17, 1990, at A21. The Bush administration also contributed ever more
>militant rhetoric and increased federal budgets to the war effort. Its 1991, $10.4 billion
>drug war budget (of which 75% was earmarked for drug law enforcement) constituted a
>62% increase over the 1989 budget, and a ten-fold increase over 1985's. John Powell
>& Eileen Hershenov, Hostage to the Drug War: The National Purse, The Constitution,
>and the Black Community, 24 U. Rev. 557, 567 (1991). The Clinton Administration in
>turn has increased the antidrug budget by 25%. Joshua Shenk, "The Phony Drug War",
>The Nation, Sep. 23/96, at 11-12. During its first term the number of marijuana-related
>arrests increased by 43%, and more Americans are in prison for such offenses than
>ever before. Eric Schlosser, "More Reefer Madness", Atlantic Monthly, April 1, 1997,
>at ---. The Clinton Administration has also proposed conditioning teenage drivers'
>licenses, parole, and welfare payments on mandatory drug tests, see Joshua Shenk,
>"Baring Teeth in the Drug War," N.Y. Times, Oct. 30, 1996, at A21, and promised
>federal intervention to effectively nullify the "medical marijuana" initiatives passed by
>the voters in California and Arizona. "Doctors Given Federal Threat on Marijuana,"
>New York Times, Dec. 31, 1996, Sec. A p. 1 (reporting Clinton Administration plans to
>revoke DEA registrations of physicians who recommend or prescribe "medical
>marijuana", including exclusion from participation in the Medicare and Medicaid
>Programs).
>5. The fiscal 1997 federal budget allocated $15.3 billion to the drug war, $2 billion
>higher than the 1995 budget. Drug Policy Surges as a Campaign Issue , N.Y. Times,
>Sep. 17, 1996, at A1, A18. The comparable figures were $4.7 billion in 1988, and $1
>billion in 1980, as reported respectively in Joshua W. Shenk, "Baring Teeth in the
>Drug War," N.Y. Times, Oct. 30, 1996, at A21; T. R. Reid, A New Assault Planned
>Against Formidable Foe: Victories are Elusive in U.S. War On Drugs, Washington Post,
>Aug. 10, 1987, at A1.
>6. Barry McCaffrey, Director, Office of National Drug Control Policy, Fight Drugs as
>You Would a Disease, Chicago Tribune, Mar. 31, 1996, at C18.
>7. The FBI reports that in 1995 there were 1,476,100 arrests for drug abuse violations,
>41% higher than in 1991 and 65% higher than in 1986. Arrests for marijuana
>possession totaled 34.1% of these arrests, or over 503,000 -- more than the combined
>total number of arrest for murder, manslaughter, robbery, arson, vagrancy, rape, and all
>sex offenses including prostitution. Crime in the United States. 1995 FBI Office of
>Uniform Crime Reports 207-08 (1996).
>8. Marc Mauer and Tracy Huling, "Young Black Americans and the Criminal Justice
>System: Five Years Later" 11 (The Sentencing Project, Oct. 1995)(drug offenders
>accounted in 1993 for 60.8% of federal prisoners and 22.5% of state prisoners).
>Regarding the escalating imprisonment rates, see fn ---.
>9. Federal drug prosecutions rose sharply from 1980 to 1992 before reaching a plateau.
>In 1981, when President Reagan took office, there were 8,775 federal drug
>prosecutions. The Bush and Clinton administrations have each averaged just under
>26,000 drug prosecutions a year, with the number rising to 28,585 in the election year
>of 1992. Boston Globe, Drug Prosecution Said to Level Off, Oct. 20, 1996 at A16 (citing
>Transactional Records Access Clearinghouse, Syracuse University). Regarding
>increased seizure and forfeiture rates, see pp. ---.
>10. In New York City in 1993, an average milligram of heroin was one third the 1979
>price -- and ten times the purity. Senate Judiciary Committee, (Federal News Service,
>Feb. 14, 1995) (testimony of Thomas A. Constantine, administrator, DEA) (66 percent
>pure compared with 6 percent, and $.53/milligram compared to $1.60, 14 years earlier).
>Meanwhile, newly popular synthetic drugs have proliferated, including fentanyl, MDMA
>or ecstasy, and methcathinone or CAT; and methamphetamine or "speed" has
>re-emerged as "the most significant dangerous drug problem in terms of domestic
>clandestine manufacture." Id. See also Boston Globe, Sep. 4, 1996, at 1, 10 (attributing
>an 18-fold increase in heroin's purity/dollar over five years in part to the fact that the
>Colombian cartels have become importers of heroin, not just cocaine).
>According to a Senate Judiciary Committee report, between 1993 and the first half of
>1995 "the ability of U.S. forces to seize or otherwise turn back drug
>shipments...dropped 53%....[Annually, as] much as 84 metric tons of additional cocaine
>and marijuana could be arriving unimpeded...through the Eastern transit zone alone."
>The report, prepared by the Republican majority, attributes this to Clinton interdiction
>cutbacks, something the Administration denies. Senate Committee on the Judiciary,
>"Losing Ground Against Drugs: A Report on Increasing Illicit Drug Use and National
>Drug Policy," (prepared by the Majority Staff), S522-1, at 10-11.
>11. Although "fewer Americans are using drugs...those who do have a much more
>serious problem, and helping them will prove far more difficult than anything that has so
>far been attempted." Michael Massing, What Ever Happened to the 'War on Drugs',
>New York Review of Books, Jun. 11, 1992, at 42 (arguing that the War on Drugs has
>attempted to safeguard suburbia while ignoring a progressively worsening inner city
>drug problem). The one success has been a reduction in the total number of drug
>consumers by roughly half since the late seventies, to 12.6 million users. Dept. of
>Health and Human Services, National Household Survey on Drug Abuse (Aug. 20,
>1996).
>12. Dept. of Health and Human Services, National Household Survey on Drug Abuse
>(Aug. 20, 1996). The survey showed that drug use among teenagers between 12-17
>years of age increased 105% between 1992 and 1995, to 10.9 percent of this
>population. Marijuana use increased 141% among teenagers during this period. The
>annual number of new users of marijuana has risen every year since 1991.
>13. The best estimate is that one third of all property crimes, assaults and murders are
>drug related. Senate Judiciary Committee (Feb. 27, 1996. (opening Statement of Gen.
>Barry R. McCaffrey, Director Designee of the Office of National Drug Control Policy).
>According to a survey reported by the DEA Administrator, 2 out of 3 males arrested in
>New York tested positive for cocaine use. Senate Judiciary Committee (Feb. 14, 1995)
>(prepared Testimony of Thomas Constantine regarding the criminogenic aspect of drug
>abuse); see also Bureau of Justice Statistics, U.S. Dept. of Justice, Sourcebook of
>Criminal Statistics 1993 (Kathleen Maguire & Ann L. Pastore eds., 1994) at 2.
>14. Senate Judiciary Committee (Feb. 27, 1996) (opening Statement of Gen. Barry R.
>McCaffrey, Director Designee of the Office of National Drug Control Policy). Gen.
>McCaffrey also estimates that from 1990-1996, "illegal drug abuse cost America more
>than $300 billion and 100,000 dead." Id.
>15. Dimensions of HIV Prevention: Needle Exchange vii (Mark D. Smith and Jeff
>Stryker, eds., 1993) (approximately 1/3 of HIV infections derive from shared needles).
>16. The prison population has grown exponentially as ever larger numbers of drug
>offenders are incarcerated. From 1983 to 1993 the number of prisoners incarcerated for
>drug crimes quintupled. Marc Mauer and Tracy Huling, Young Black Americans and
>the Criminal Justice System: Five Years Later 10 (The Sentencing Project, Oct. 1995).
>For discussion of the increasing reliance on incarceration to solve our drug problem,
>see infra at pp. ---
>17. In 1994, almost 7% of black adult males adults were incarcerated, compared to 1%
>of white adult males. "Nearly 7% of Adult Black men were Inmates in '94", N.Y.
>Times, 12/4/1995, A15 (citing U.S. Department of Justice Press Release, "Probation
>and Parole Population reaches Almost 3.8 Million," at 4, 7). The number of African
>American males in their 20s under criminal justice supervision -- such as incarceration,
>parole, or probation -- stood at 32.2% in 1995. Mauer and Huling, supra note ---, at 1
>and 5. One response, by Prince Georges County high schools, has been to invite police
>to teach classes on how to be arrested, handcuffed, and searched. Wall Street Journal at
>BI, 16 (June 16, 1994).
>Focusing on drug offenses, African Americans comprise 12 % of the population, 13% of
>all monthly drug users, 35% of those arrested for drug possession, 55% of those
>convicted of drug possession, and 74% of those sentenced to prison for drug
>possession." Mauer and Huling, supra note ---, at 12 (compiling statistics from 1992
>and 1993). Mauer and Huling report that African Americans and Hispanics account for
>almost 90% of those sentenced to state prisons for drug possession, and that the
>number of Black (non-Hispanic) women incarcerated in state prisons for drug offenses
>multiplied more than eight fold from 1986 to 1991. Id. at 1, 2, and 13. These disparate
>conviction rates have all the more impact because drug offenders are sentenced to
>longer terms (6.5 years on average) than racketeers or extortionists (5 years). Keith
>Watters, "Law without Justice", National Bar Association Magazine, Mar/Apr. 1996 at
>1, 23 (1996).
>18. A recent public opinion survey found that only 6% of the respondents thought that
>drug abuse is less of a problem today than five years ago. The survey notes that 50%
>gave the federal government a grade of D or F for dealing with the problems of drug
>use and addiction. Eric E. Sterling, Drug Policy of a Failed User, reprinted in Legal
>Times: Law and Lobbying in the Nation's Capital, May 22, 1995, at 26. See also, e.g.,
>Buckley et al, Symposium, "The War on Drugs Is Lost," National Review, 2/12/1996
>vol. 48, p. 34 ff; , Eva Bertram and Kenneth Sharpe, "War Ends, Drugs Win," The
>Nation, Jan. 6, 1997 at 11; Michael Massing, What Ever Happened to the 'War on
>Drugs', New York Review of Books, Jun. 11, 1992; Dan Baum, Smoke and Mirrors:
>The War on Drugs and the Politics of Failure 242 (1996).
>19. Surgeon General Elders suggested that drug legalization should be studied as a
>possible alternative to urban disorder brought about by the war on drugs. Steven
>Labaton, "Surgeon General Suggests Study of Legalizing Drugs," N.Y. Times, Dec. 8,
>1993, at A. 23. Judge Baer suppressed a large quantity of heroin he deemed seized
>without probable cause, until attacks by the media, Senator Dole and President Clinton
>led to him to reverse his ruling. Don Van Natta, Jr., Under Pressure, Federal Judge
>Reverses Decision in Drug Case, N.Y. Times, April 2, 1996, at A1. Former Governor
>William Weld found his nomination to be Ambassador to Mexico hijacked by Senator
>Jesse Helms on grounds that Weld had supported proposals to allow the medical use of
>marijuana. See, e.g., "White House Vows to Fight to Get Weld Confirmed as Mexico
>Ambassador," Dallas Morning News, July 17,, 1997 at 13A. Michael Tonry argues that
>"the War on Drugs and the set of harsh crime control policies...were undertaken to
>achieve political, not policy, objectives. It is the adoption for political purposes of
>policies with foreseeable disparate impacts, the use of disadvantaged black Americans
>as a means to achieving politicians' electoral ends, that must in the end be justified. It
>cannot." Tonry, Malign Neglect: Race, Crime and Punishment in America 39 (Oxford,
>1995). For a discussion of the self-perpetuating nature of public policy that benefits
>politicians, see Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public
>Policy, 103 Yale L.J. 2593, 2618 (1994); .
>20. ---cross ref
>21. ---cross ref
>22. ---cross ref
>23. ---cross ref
>24. ---cross ref
>25. ---cross ref
>26. --cross ref
>27. See George C. Pratt & William B. Peterson, Civil Forfeiture in the Second Circuit, 65
>St. John's L. Rev. 653 (1991)("Perhaps no area of the law embodies more legal fictions
>-- and better illustrates their use and misuse -- than does civil forfeiture."); Steven
>Wisotsky, Not Thinking Like a Lawyer: The Case of Drugs in the Courts, 5 Notre Dame
>J. L., Ethics & Pub. Pol'y 651, 658 (1991)(arguing courts adopt "the operative premise
>is that drugs are bad, so bad that almost any law or law enforcement measure is
>validated"); United States v. One Parcel of Property, 85 F.3d 985 (2d Cir. 1996) (in "only
>one Court of Appeals opinion, a dissent, was there a full Matthews v. Eldridge analysis
>of the civil drug forfeiture statute's probable cause requirement"); William Genego,
>"Forfeiture, Legitimation and a Due Process Right to Counsel," 59 Brooklyn Law
>Review 337 at 340 and 343 (noting that most courts have consistently "rubber stamped
>the governments exercise of its forfeiture power...[unwilling] even to address the
>merits", and lauding the Second Circuit for having begun a critical reexamination of
>forfeiture law beginning in 1992).
>28. The Comprehensive Crime Control Act of 1984 and the Anti-Drug Abuse Act of
>1986 added new forfeiture laws and new civil penalties, among many stringent
>provisions. As to drug sentences, they were ratcheted up fairly continuously; one year's
>"get tough" provisions were deemed too lenient the next. The 1986 Act prescribed
>some of the harshest sentences in the U.S. Code: five year mandatory minimum
>sentences for sale of small amounts of drugs, and mandatory 10 year to life sentences
>for those convicted of possession with intent to distribute larger quantities of drugs,
>such as 10 grams of LSD.
>In 1988 Congress doubled most of the penalties in the earlier law, and eliminated
>probation or parole in most cases. 21 U.S.C. sec. 843(b)(1)(B). The possible jail
>sentence for simple possession of recreational quantities of drugs was increased from
>one to two years. 21 U.S.C Sec. 844 (1988).
>In 1994 Congress passed the Omnibus Crime Act, which included sixty new death
>penalty offenses and limits on habeas corpus proceedings. One of the provisions
>penalizes a state 5% (in later years, 10%) of its federal highway aid if it does not enact
>laws mandating license suspension upon a drug conviction. 23 U.S.C. sec. 159 (1994).
>See also Wisotsky, supra note --- at 904; Michele H. Kalstein et al, Calculating
>Injustice: The Fixation on Punishment as Crime Control, 27 Harv. C.R.-C.L. L. Rev. 575
>(1992).
>29. This program is authorized by the Anti-Drug Abuse Act of 1986 as amended in
>1988. Pub. L. No. 100-690 Sec. 6091, 42 U.S.C. Sec. 3751 (1988).
>30. LEAA provided 7.7 billion dollars to state and local governments between 1968 and
>its expiration in 1982. What the LEAA Elephant Learned, N.Y. Times, Apr. 21, 1982, at
>A22.
>31. These grants are administered by the Bureau of Justice Assistance (BJA) office "to
>assist States and units of local government in carrying out specific programs which offer
>a high probability of improving the functioning of the criminal justice system ...by
>developing programs and projects to assist multijurisdictional and multi-State
>organizations in the drug control problem and to support national drug control
>priorities." 42 U.S.C. Sec. 3751(a). The money goes to the requesting state where it is
>distributed through the state's criminal justice agency to individual or combined units of
>state or local government that apply for funding.
>32. A multijurisdictional task force is supposed to enable law enforcement agencies to
>collaborate across state, local, and national boundaries on drug investigations, arrests,
>seizures, information gathering and surveillance.
>33. Of the 25 program areas eligible for federal block grant assistance,
>multijurisdictional drug task forces have consistently garnered between one-third and
>one-half of the funding each year. Over half of that amount finances the salaries and
>overtime pay of task force members. GAO, War on Drugs, Federal Assistance to State
>and Local Drug Enforcement 1, 5 (1993). In 1991 $139 million of Byrne money funded
>881 MJDTFs with amounts allocated to each state from $111,000 to more than $23
>million. Id. See also Justice Research and Statistics Association, Multijuridictional Drug
>Enforcement Task Forces: A Special Analysis Report of the National Consortium to
>Assess State Drug Control Initiatives 22 (June 1992)(approximately 40% of BJA
>formula grant funds were allocated to establish or enhance drug enforcement task force
>operations); James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa
>Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide
>Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics
>Association (reporting that 50% of the BJA formula grants were allocated to MJDTFs).
>34. Justice Research and Statistics Association, Multijuridictional Drug Enforcement
>Task Forces: A Special Analysis Report of the National Consortium to Assess State
>Drug Control Initiatives 22 (June 1992). 91 percent of task forces were created from
>1987 to 1992. "This corresponded to the availability of federal funds for task forces . . .
>" James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa
>Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide
>Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics Assn.,
>(hereinafter JRSA: Commander Survey) at 5.
>35. Justice Research and Statistics Association, Multijurisdictional Drug Control Task
>Forces: A Five Year Review, 1988-1992 [herinafter JRSA, Five Year Review] 6 (Oct.,
>1993). These statistics include only Byrne Formula Grant-funded task forces. There are
>many other federally funded drug task forces outside the Byrne grant program as well,
>such as the Organized Crime Drug Enforcement Task Forces (OCDETF), the DEA
>task forces, and the Bureau of Justice Assistance discretion grant funded task forces.
>Fifty-two localities had both DEA and Byrne-funded task forces. See GAO, War on
>Drugs, Federal Assistance to State and Local Drug Enforcement 1 (Apr., 1993). The
>DEA also deploys Mobile Enforcement Teams (METS), groups of 10 to 12 DEA agents
>each assigned to a local police department. Senate Judiciary Committee (Feb. 14, 1995)
>(prepared testimony of Thomas A. Constantine, DEA Administrator). While this article
>focuses on the Byrne-funded task forces, one should bear in mind that there is
>significant additional joint task force activity undertaken by these other programs.
>36. JRSA, Five Year Review supra note __ at 6 - 7.
>37. JRSA, Five Year Review supra note __ at 5 and 7
>38. Pub. L. No. 91-513, 84 Stat. 1276 (1970), 21 U.S.C. Sec. 801 et seq. Congress
>passed other major forfeiture legislation in 1970 as well. It inserted forfeiture
>provisions in the Racketeer Influenced and Corrupt Organizations (RICO) act, 18
>U.S.C. Sec.1961-68 (enacted as Title IX of the Organized Crime Control Act of 1970),
>and in the Currency and Foreign Transactions Reporting Act, now codified at 3q U.S.C.
>Sec. 5317(c).
>39. 21 U.S.C. Sec. 881(a)(4) (1996). Criminal forfeiture, covering proceeds or
>instrumentalities of a federal drug felony, is governed by 21 U.S.C. Sec. 853.
>40. Psychotropic Substances Act of 1978, Pub. L. No. 95-633, 92 Stat. 3768, 3777, 21
>U.S.C. Sec. 881 (a)(6). Proceeds are broadly defined to include cash, negotiable
>instruments, securities, and other things of value. This amendment resulted in a 20-fold
>increase in the value of DEA forfeitures compared to the previous year. William Patrick
>Nelson, Should the Ranch Go Free Because the Constable Blundered?, 80 Cal. L. Rev.
>1309, 1316 (1992)(quoting General Accounting Office, Asset Forfeiture--A Seldom
>Used Tool In Combatting Drug Trafficking 59 (1981)). The GAO report also notes that
>during the 10 years following enactment of RICO and CCE forfeitures in 1970, these
>forfeiture provisions were used in only 98 cases. Id. at 13.
>41. Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, Sec. 306(a)(codified as
>subsection (a)(7) to 21 U.S.C. Sec. 881 (authorizing forfeiture of real property used, or
>intended to be used, to commit or facilitate a federal drug felony). There is legislative
>history suggesting seizable property was conceived as property actually used in
>manufacturing drugs. See Nelson, supra note ---, at 1316. However courts and
>prosecutors have interpreted it broadly to include any real property having a
>connection to a drug offense punishable by a year in prison.
>42. 21 U.S.C. sec. 853(p).
>43. The drug offense must be punishable by more than one year's imprisonment to
>serve as a predicate for forfeiture. 28 U.S.C. Sec. 881(a) (1996). Only simple
>possession crimes fall below this threshold. 21 U.S.C. Sec. 841 (1989).
>44. Compare the construction of 21 U.S.C. 881(a)(7) (forfeiture of real estate which,
>inter alia, facilitates a narcotics felony) in United States v. Santoro, 866 F. 2d 1538, 1541
>(4 Cir., 1989)(requiring substantial connection to the felony) with United States v. 916
>Douglas Avenue, 903 F2d 490, 493-94 (7th Cir., 1990) (requiring "more than an
>incidental or fortuitous connection").
>David Smith, former Associate Director of the Dept. of Justice's Asset Forfeiture
>Office, notes that the various tests used by different courts to define facilitation --
>"active aid," "some substantial connection to" a transaction, making a transaction "less
>difficult" -- "merely beg the question posed by the statutory language, rather than
>answering it." . David Smith, Prosecution and Defense of Forfeiture Cases, supra at
>note ---, at 3.03, p. 3-14 and n. 6 (Release 16, June, 1997 edition)(hereinafter "Smith,
>Forfeiture"). Is a car forfeitable because it was used to drive to a preliminary meeting
>that led to a drug transaction on a later date? See United States v. One 1974 Cadillac
>Eldorado Sedan, 548 F. 2d 421, 423 (2d Cir. 1977) (finding nexus sufficient). Is any
>quantity of drugs, however minute, sufficient to justify forfeiture of an automobile? See
>United States v. One Mercedes Benz, 846 F.2d 2 (2d Cir., 1988)(answering yes, and
>finding less than an ounce of marijuana sufficient for forfeiture). Must the government
>link the property to a specific drug transaction? See United States v. Banco Cafetero
>Panama, 797 F.2d 1154, 1160 (2d Cir.1986) (answering no, so long as the government
>can link the property with drug activity). These rulings are worrisome if the justification
>for denying criminal due process rights is that the forfeiture is an action against the
>guilty property based on its close relationship to the criminal activity, as Justice Scalia
>has argued. See Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 2814-15 (1993)
>(Scalia, J., concurring) (rejecting a claim that forfeiture and criminal sentencing
>collectively constitute double jeopardy). But they are also troubling, because
>disproportionate, if forfeiture is alternatively supposed to be based on the culpability of
>the owner, as the majority suggested in Austin (forfeiture rests "on the notion that the
>owner has been negligent in allowing his property to be misused and . . . is properly
>punished for that negligence.") Id. at 2808.
>In Bennis v. Michigan, 116 S.Ct. 994 (1996), the court upheld forfeiture of an
>automobile that was the site of an act of prostitution against a claim by the client's wife.
>Finding insufficient nexus, Justice Stevens dissented, and criticized what he viewed as
>the court's grant of unbridled governmental power to confiscate private property with
>only a tangential relationship to a crime. The car in that case fit none of the traditional
>categories of goods subject to seizure -- contraband, proceeds of criminal activity, and
>tools of the criminal's trade. Id. at 1004. Justice Thomas, concurring in Bennis, noted
>that the Court has yet to delineate what it means in the context of forfeiture law for
>someone to "use" property. He urged that the limits be strictly construed when the
>government contemplates taking property from those it merely suspects of colluding in
>crime, or from those it does not even suspect. Id. at 1002 (Thomas, J., concurring).
>45. Judy Rakowsky, State Tries to Seize Weymouth Bar in Drug Case, Boston Globe,
>Oct. 18, 1996, at C-11 (concerning the Mass. Attorney General's filing of a civil suit to
>forfeit the bar "for allegedly failing to stop drug dealing in the bar").
>46. U.S. v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725 (1994). The
>court found against the government, holding that in the circumstances of the case,
>forfeiture of the father's home of 22 years for the acts of his son was an excessive fine
>barred by the 8th amendment.
>47. Police have seized money in the absence of drugs, later confirming through
>laboratory analysis that it contained some residue of cocaine. Dollar bills are often used
>for packaging and sniffing cocaine, but because "the minutest trace of the drug will
>'infect' other bills, much of the currency in the country now tests positive for
>narcotics." David Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times, Dec. 11,
>1994, Section 6, at 70. Compare United States v. U.S. Currency, 30,060.00, 39 F. 3d
>1039, 1042-43 (9th Cir. 1994)(given widespread contamination of bills, continued
>reliance on cocaine detection dogs is indefensible) with United States v. $67,220.00 in
>U.S. Currency, 957 F.2d 280, 285 (6 Cir. 1992) (dog identification is strong evidence of
>nexus).
>48. The proceedings are instituted against tainted property as a civil in rem proceeding,
>based on the idea that the property is guilty and not the owner. United States v. 92
>Buena Vista Avenue, 113 S. Ct. 1126, 1135 (1993); J. W. Goldsmith, Jr-Grant Co. v. U.S.,
>254 U.S. 505, 511, 41 S. Ct. 189 (1921); The Palmyra, 25 U.S. (12 Wheat) 1, 14
>(1827)(civil proceeding constitutional because "the offense is attached primarily to the
>thing"); United States v. The Little Charles, 26 F. Cas. 979, 982 (C.Va. 1818) No.
>15,612). The concept was borrowed from English and biblical law and adapted for use in
>America during the colonial period. In England, deodand, which made the
>instrumentality of someone's death forfeitable to the crown, is often cited as a
>predecessor of civil forfeiture, although the claim is not without doubt. Compare James
>Maxeiner, Bane of American Forfeiture Law--Banished at Last?, 62 Cornell L.Rev. 768,
>771 (1977) (arguing that in rem forfeitures derive not from deodand but from English
>statutory forfeitures of vessels violating customs and revenue laws) and Calero-Toledo
>v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974)(same) with Holmes, The
>Common Law, Ch. 1 (M. Howe, ed. 1963) and Finkelstein, The Goring Ox: Some
>Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western
>Notation of Sovereignty, 46 Temp. L. Q. 169, 182-184 (19??).
>49. The general rule is that "seizure for purposes of forfeiture is one of those
>'extraordinary situations that justify postponing notice and opportunity for a hearing"
>until after seizure. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677
>(1974), citing Fuentes v. Shevin, 407 U.S. 67, 90 (1972)(seizure of yacht). However, an
>exception is made in the case of real estate because, unlike other assets, it is not
>removable, and there are other, less drastic ways to secure it pending a pre-seizure
>hearing. U.S. v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492 (1993).
>The Court applied the three pronged procedural due process test of Mathews v.
>Eldridge, 424 U.S. 319 (1976), weighing the private interest affected, the risk of
>erroneous deprivation under the process used, and the government's interest in
>avoiding more burdensome procedures. As the court noted, one consequence of having
>no pre-seizure hearing is that the magistrate issuing the warrant will not be informed of
>possible defenses to forfeiture, such as innocent ownership, leading to prolonged,
>erroneous deprivation. Id. at 114 S. Ct. 502-03.
>50. To do so the owner must post a cash bond of 10% of the appraised value, up to
>$5,000, within 20 days of notification of the intended forfeiture, 19 U.S.C. 1608 (1988),
>and ordinarily will need to retain a lawyer as well.
>51. As an in rem action, a forfeiture proceeding establishes government title to the
>property against all claimants. Criminal forfeitures are in personam actions which
>determine the governments rights to the property only against the defendant. Smith,
>Forfeiture, supra at note --- Sec. 2.03 (June, 1997 ed.).
>52. 548 F. 2d 421 (2d Cir., 1977).
>53. Some of the procedural inadequacies may be addressed by Congress in the coming
>year. See infra p. ---. In any event, among the few constitutional safeguards that apply in
>substantially weakened form are the Fourth Amendment right against unreasonable
>searches and seizures and the Fifth Amendment privilege against self incrimination
>(and, as detailed infra Sec. ---, the Eighth Amendment prohibition on excessive fines).
>See Boyd v. United States, 116 U.S. 616, 634-35 (1886) (characterizing civil forfeiture as
>"quasi criminal" for purposes of fourth and fifth amendments); United States v. Ward,
>448 U.S. 242, 254-55 (1980). Even here, however, the rights bear little resemblance to
>their criminal law cousins. By contrast with a criminal trial, in a forfeiture case the
>government may be able to rely on a negative inference from the claimant's assertion of
>the fifth amendment privilege. See discussion in Smith, Forfeiture, supra note ---, at
>Sec. 10.03 (June, 1997 ed.)(concluding at p. 10-37 of Release 16 that the question
>remains open, and citing conflicting authority), and United States v. Property Located at
>15 Black Ledge Dr., 897 F.2d 97, 103 (2d Cir. 1990). As to the fourth amendment, the
>exclusionary rule may apply to evidence, see One 1958 Plymouth Sedan v. Pennsylvania,
>380 U.S. 693, 696 (1965), but will not serve to suppress seized items which are
>themselves subject to forfeiture. INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40 (1984);
>United States v. $37,780 in United States Currency, 920 F.2d 159, 163 (2d Cir.1990);
>United States v. $12,390, 956 F.2d 801 (1992). For a discussion of the troubled
>relationship between forfeiture laws and the Fourth Amendment protections, see
>Nelson, supra note ---, at 1333.
>54. United States v. Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1267 (2d
>Cir.1989)(hearsay) Smith, Forfeiture, sec. 11.03, p. 11-13 (no presumption of
>innocence); Lassiter v. Dept. of Social Services, 452 U.S. 18, 26-27 (presumption that
>indigent has no right to appointed counsel unless physical liberty at stake).
>55. 19 U.S.C. Sec. 1615 (claimant must prove his right to the property by showing
>either that there was no basis for forfeiture or that he is an innocent owner). In United
>States v. $12,390, 956 F.2d 801, 810 (8th Cir. 1992), Judge Beam, dissenting,
>concluded that the government's ability to divest a claimant of title "with a mere
>probable cause showing, often established through the use of inadmissible evidence . . .
>[is] a denial of due process." Dicta in Second Circuit and the Ninth Circuit opinions
>have also questioned whether shifting the burden of proof to the defendant comports
>with due process. United States v. $49,576 U.S. Currency, 116 F. 3d 425 (9th Cir.,
>1997); United States v. one Parcel of Property Located at 194 Quaker Farms Road, 85
>F.3d 985, 990 (2nd Cir., 1996). Regarding the burden of proof, see also Eighty Seven
>Thousand and Sixty Dollars, 23 F. 3rd 1352, 1354 (8th Cir., 1994); United States v.
>$121,100 in U.S. Currency, 999 F.2d 1503, 1505 (11 Cir., 1993).
>56. J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 513 (1921);
>Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90 (1974). Calero-Toledo
>held forfeiture constitutional against innocent, non-negligent owner. However, it left
>open a possible constitutional defense for those who have done everything that
>reasonably could be expected to prevent the proscribed use of the property. Id. at 689.
>Particularly draconian results flow from the "relation back doctrine" except in those
>jurisdictions which have abolished it. Under the doctrine, title to the property passes to
>the government at the time of the act making it subject to forfeiture. It may be years
>before the government takes any action against the property or the owner, and in the
>interim it may have been sold to an innocent third party. Thus under this doctrine, the
>government may defeat the claim of a bona fide purchaser. This doctrine is presumed,
>but may be altered by specific legislative enactment, for example by providing for
>transfer of title when the property is seized. See, e.g., Motlow v. State ex rel. Koeln, 295
>U.S. 97 (1935); United States v. Stowell, 133 U.S. 1 (1890); Henderson's Distilled Spirits,
>81 U.S. (14 Wall.) 44. 56-67 (1871). Congress codified the relation back doctrine in the
>Comprehensive Forfeiture Act of 1984, but has also amended Sec. 881 to protect the
>interests of innocent owners in federal forfeitures, and has further provided an
>opportunity to mitigate unjust cases through an administrative remission process. See
>also Bennis v. Michigan, 116 S.Ct. 994 (1996), discussed supra at fn. ---.
>57. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984) (acquittal
>does not estop civil forfeiture action because of the different burden of proof in the two
>proceedings); United States v. Real Property Located at 6625 Zumirez Drive, 845 F.
>Supp. 725, 733 (1994). As to any double jeopardy claim against successive criminal and
>forfeiture proceedings or punishments, the Supreme Court disposed of that claim by
>holding that although in rem forfeiture is both remedial and punitive in nature, it is not
>so punitive as to equal a second punishment abridging the double jeopardy clause.
>United States v. Ursery and $405,089.23 in U.S. Currency, -- U.S. --, 116 S. Ct. 2135
>(1996).
>58. See George C. Pratt & William B. Peterson, Civil Forfeiture in the Second Circuit, 65
>St. John's L. Rev. 653 (1991)("[T]he scope of civil forfeiture has been expanded to
>function as punishment for the property owner's criminal conduct, while the doctrine
>continues to masquerade as a civil proceeding against property . . . , Congress has
>created a draconian punishment that is virtually bereft of constitutional protection.");
>United States v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725
>(1994)("The mere fact that the criminal activity occurred at the property does not make
>the property 'guilty' of an offense, 'as could reasonably be argued of [a] distillery . . . or
>[a] pirate vessel' . . . ").
>59. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures,
>Wrongful Death and the Western Notion of Sovereignty, 46 Temple L. Q. 169, 252 (1973).
>See also United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2nd
>Cir. 1992)("We continue to be enormously troubled by the government's increasing
>and virtually unchecked use of the civil forfeiture statutes and the disregard for due
>process that is buried in those statutes."); Boyd v. United States, 116 U.S. 616, 637
>(1886), in which the Supreme Court rejected the "proposition that the [in rem]
>proceeding is not, in effect, a proceeding against the owner of the property, as well as
>against the goods; for it is his breach of the laws which has to be proved to establish the
>forfeiture, and it is his property which is to be forfeited." In today's Court it is Justice
>Stevens who has been most critical of the Rehnquist Court's reliance on the fiction,
>sometimes called the personification doctrine, that forfeiture is a civil action against
>property. Ursery, 116 S. Ct. 2135, ---, --- (Stevens, J., dissenting).
>60. The former Associate Director of the Department of Justice's Asset Forfeiture
>Office draws this analogy in Smith, Forfeiture, supra at note ---, at Sec. 1.02, 1-18
>(Release 20 in June, 1997 ed.). A 9th Circuit opinion notes its wariness of civil
>forfeiture because it imposes "quasi-criminal" penalties without affording criminal
>procedural protections. United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1068
>(9th Cir., 1994). See also Juan R. Torruella, "The 'War on Drugs': One Judge's
>Attempt at a Rational Discussion," 14 Yale J. on Reg. 195, 256 (1997)("Some of the
>most eggregious actions committed by the government have been the the area of
>forfeitures, in which courts have allowed abuses which seriously undermine the
>principles of legality and due process.") For an early example of punishment in the
>guise of an in rem, non-criminal proceeding against property, see Miller v. United States,
>78 U.S. (11 Wall.) 268, 305 (1871)(upholding the civil forfeiture of estates of
>Confederate rebels as constitutional under the power to prosecute war). A dissenting
>opinion argued that such confiscation was effectively punishment for treason, which
>should only be applied after criminal prosecution. Id. at 315, 318-23) (Field, J.,
>dissenting). See also Tyler v. Defrees, 78 U.S. (11 Wall.) 331, 351-53 (1871) (Field, J.,
>dissenting).
>61. GAO, Asset Forfeiture: An Update (Apr. 24, 1989) (submitted to the Subcommittee
>on Crime of the House Judiciary Committee) (reporting its 1989 analysis of 1,125
>Justice Dept. and Customs forfeitures, showing that of judicial forfeitures cases 89%
>were uncontested, resulting in default judgments for the government). Although a
>claimant may also seek mitigation of a forfeiture judgment from the Attorney General,
>the odds here are even more daunting: of $460 million in assets which the Justice
>Department sought to forfeit in 1990, it refunded just $13 million. Federal Seizure of
>Illegal Assets Nets Government $1.5 Billion Since 1985, U.S.Law Week (Daily Edition),
>Feb. 4, 1991. Consequently the best alternative for most claimants is to seek an
>agreement with the government to return some portion of the seized property. While
>this often occurs, the government has a substantial advantage in negotiation and the
>deal struck may instead exchange a prosecutorial commitment not to pursue criminal
>charges if the claimant will waive her rights to all the property, or even turn over
>additional property. At the time the GAO's analysis was undertaken, 4/5 of the cases
>examined were judicial forfeitures, and less than 1/5 administrative forfeitures, because
>administrative forfeitures could not be instituted against real estate or against assets
>worth over $100,000. But the ceiling has since been raised to $500,000, resulting in a
>huge shift to administrative forfeitures. 80% of federal forfeitures now occur
>administratively. Steven L. Kessler, Civil and Criminal Forfeiture: Federal and State
>Practice Sec. 6.01, at 6-4 (1993).)
>62. Comprehensive Crime Control Act of 1984, PL 98-473 Sec. 309-310. Although the
>Fund was initially required to deposit to the Treasury's General Fund all sums in
>excess of $5 million that remained after authorized payments, this ceiling was abolished
>by a 1986 amendment. 28 U.S.C. Sec. 524(c)(4), as amended by Department of Justice
>Assets Forfeiture Fund Amendments Act of 1986, Pub. L. No. 99-570, Sec.1152(a)(5),
>100 Stat. 3207-12. See also U.S. Office of National Drug Control Policy, National Drug
>Control Strategy 28 (Sept. 1989) (containing President Bush's endorsement of the
>policy of using proceeds from forfeiture for law enforcement). Pursuant to 21 U.S.C.
>Sec. 881(e)(2)(B), whenever money is seized by a purely federal agency other than the
>postal service, the agency may keep the expenses related to the seizure, and must
>transfer the rest to the Department of Justice Assets Forfeiture Fund. This Fund is
>earmarked for law enforcement. It may not be used to pay the salaries of United States
>employees, but may be used to pay informants for information, or to pay salaries of local
>police or other non-federal employees. 28 U.S.C. Sec. 524; Directive 90-5, "The
>Attorney-General's Guidelines on Seized and Forfeited Property" (July 31, 1990), at
>VII(D).
>63. The Attorney General may share forfeited property with any state or local law
>enforcement agency which participated in any act leading to seizure or forfeiture of the
>property, as authorized by 21 U.S.C. Sec. 881(e)(1) and 19 U.S.C. Sec. 1616(a), and,
>with regard to money laundering violations, 18 U.S.C. Sec. 981(e).
>64. Seizures accomplished exclusively by state or local agencies may be "adopted" by
>the federal government whenever the conduct giving rise to the seizure is in violation
>of federal law. Directive 90-5, "The Attorney-General's Guidelines on Seized and
>Forfeited Property" (July 31, 1990), at II(A). When the federal government has
>"adopted" a state forfeiture case, 80% of judicially or administratively forfeited assets
>are allocated to the state or local agencies for law enforcement purposes, and 20%
>remains with the federal government. In joint seizures, the share is determined on a
>case by case basis based on the amount of work each agency performed. A Guide to
>Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement
>Agencies, in DOJ Asset Forfeiture Manual 7-8 (3/94); 28 U.S.C. Sec. 881(e)(3). The
>Justice Department requires state and local agencies receiving equitable sharing funds
>to use them for law enforcement purposes including but not limited to payments for law
>enforcement equipment, weapons, salaries and overtime, training, expenses for travel,
>informant reward money, detention facilities. Id. at 10-11. State and local prosecutors
>may also receive equitable sharing under specified conditions, which include preparing
>documents or providing an informant. Id. at 8-9. States must request equitable sharing
>within 60 days of seizure or, if federally adopted following seizure, of the date of
>adoption. Id. at 6.
>65. For example, the Little Compton, Rhode Island police department acquired asset
>allocation of more than 10 times its annual budget through participation in a single
>operation. Steve Stecklow, "Big Money for a Tiny Police Force," Philadelphia Inquirer,
>Aug. 24, 1992, at A1. Such individual forfeitures in the millions are not uncommon. See,
>e.g., United States v. Cauble, 706 F2d 1322 (5th Cir. 1983)(RICO forfeiture of
>marijuana smuggler's businesses netted property valued at $15-20 million). The largest
>forfeitures, however, have emanated from securities law forfeiture. See Sharon Walsh,
>Give and Take on the Hot Issue of Asset Forfeiture, Wash. Post. F7 (3/11/1996)(listing
>a $222 million forfeiture in the Drexel Burnham case and a $176.3 million forfeiture in
>the Michael Milken case). For a discussion of law enforcement's substantial economic
>stake in forfeited assets, see pp. ----.
>66. The various state forfeiture distribution formulas are compiled in the Appendix,
>infra. Most state laws provide the police with a less favorable percentage of the assets
>than the federal law, or require sharing the assets with other state agencies. See, e.g.,
>Ill. Rev. Stat. ch. 702 Sec. 550/12, 570/505 (distribution formula of 10% to general fund,
>25% to state's attorney, and 65% to police narcotics law enforcement fund). Some
>states, such as Missouri and Indiana, require seized assets to be paid into the state's
>general fund or some non-law enforcement agency, with none earmarked for police.
>Under equitable sharing of federally adopted seizures, however, 80-85% of federally
>forfeited assets may be redistributed to the state and local law enforcement agencies.
>21 U.S.C. 881(e). See also "The Attorney General's Guidelines on Seized and Forfeited
>Property."
>67. Federal adoption may occur after seizure of the property or arrest. The local agency
>has 30 days after seizure to request the U.S. Attorney to adopt it as a federal case.
>Directive 93-1, at 4, Memo of Cary Copeland dated Jan. 15/93, contained in DOJ Asset
>Forfeiture Manual. Alternatively, local police may federalize a seizure by requesting the
>DEA, FBI, INS, IRS, Postal Inspection Service, or ATF to assist it in the investigation,
>seizure or arrest. Directive 91-4, A Guide to Equitable Sharing of federally Forfeited
>Property for State and Local Law Enforcement Agencies, in DOJ Asset Forfeiture
>Manual 1-2 (Dec. 1990).
>According to Directive 93-1, at at 3-4, forfeiture cases should generally be brought in
>the jurisdiction where the criminal defendants (if any) are being prosecuted. But
>massive numbers of forfeitures are being brought federally, either because an
>otherwise "local" case is handed to the Justice Department for federal prosecution, or
>because criminal prosecution is dispensed with.
>68. "In determining the equitable share for each participating agency, the following
>factors shall be considered: (1) whether the seizure was adopted or was the result of a
>joint investigation . . . (7) Whether the state or local agency could have achieved
>forfeiture under state law, with favorable consideration given to an agency which could
>have forfeited the asset(s) on its own but joined forces with the United States to make a
>more effective investigation." Directive 90-5, The Attorney-General's Guidelines on
>Seized and Forfeited Property in DOJ Asset Forfeiture Manual, Vol. 3 V(B)(7), (July
>31, 1990). The Department of Justice itself developed the equitable sharing concept,
>Directive 91-7, "Asset Forfeiture Talking Points", May 1991, prepared by Executive
>Office for Asset Forfeiture of DoJ, at 2, in D of J Asset Forfeiture Manual.
>The Department also prohibits discontinuation of a federal forfeiture proceeding in
>favor of a state proceeding unless the United States Attorney personally approves it
>after considering the financial consequences to its Assets Forfeiture Fund. Directive
>90-5, The Attorney-General's Guidelines on Seized and Forfeited Property in DOJ
>Asset Forfeiture Manual, Vol. 3. IX (A) and (B) (July 31, 1990).
>69. According to the Deputy Attorney General for the State of California, "[T]he
>formula for the distribution of proceeds to law enforcement is a determining factor in
>motivating forfeiture-focused investigations and in choosing the forum for conducting
>forfeiture proceedings." Gary Schons, Fighting Drugs with Drug Money: AB4162 Asset
>Forfeiture: A New Weapon in the War on Drugs, Dicta: The Lawyer's Magazine 7 (1988),
>at 40. Journalist Dan Baum has described the impact of this forum shopping in
>California as follows:
>California . . . allowed 65 percent of assets seized in state or local drug busts to be paid
>to the participating police, with the rest going for mental health, district attorneys, and
>informants. But the lawmen of the Golden Bear State still preferred to go federal. They
>perfected the art of presenting 100-percent complete cases to the U.S. attorney for
>'adoption,' paying the U.S. Justice Department a 10-percent processing fee and
>keeping a full 90 percent of the seized assets. 'That is, we receive a case which is in
>every respect a local case. . . and we put our cover on it,' U.S. Attorney Joseph Whitley
>told Congress. When Rep. Larry Smith suggested the scheme was making the federal
>government a partner in 'subverting' California laws, Whitly could only agree.
>Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure 242
>(1996). See also In re Property Seized from Bly, 456 N.W.2d 195, 199 (Iowa 1990) and
>United States v. One Parcel of Property Located at 1606 Butterfield Road, 786 F. Supp.
>1497, 1512 (N.D. Iowa 1991)(in which local authorities circumvented the Iowa's court's
>ruling that the state homestead statute prohibited forfeiture of Bly's house by having
>the forfeiture "adopted" and proceeding under federal forfeiture laws); J. Bradley
>Horn, The Reach of Iowa's Civil Forfeiture Statute: How Far Is Too Far? note, 42 Drake
>L. Rev. 661 (1993)(analyzing the Bly case); and United States v. Winston-Salem Forsyth
>County Bd of Education, 902 F.2d 267 (1990)(upholding local police retention of
>equitable sharing proceeds over a challenge by a county board of education that it was
>entitled to such proceeds under North Carolina forfeiture laws). Congressional efforts
>to amend the forfeiture law to prevent such circumventions have failed, as detailed infra
>at ---.
>70. David Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times Dec. 11, 1994,
>Section 6, at 70 (quoting the 1992 testimony of Cary H. Copeland, then director of the
>Justice Department's executive-office asset forfeiture unit). See also United States v.
>Two Tracts of Real Property, 998 F. 2d 204, 213-14 (4th Cir., 1993)("one of the most
>potent weapons in the government's war on drugs").
>71. Heilbroner, supra note ---.
>72. This provides the alternative rationale, endorsed by the Supreme Court, that
>forfeitures can buy law enforcement strategies which are effective. According to the
>Court, the government's legitimate interest in forfeiture includes the funding it
>provides for law enforcement operations. Caplin & Drysdale v. United States, 491 U.S.
>617, 629 (1989) ("[T]he Government has a pecuniary interest in forfeiture that goes
>beyond merely separating a criminal from his ill-gotten gains . . . .The sums of money . .
>. are substantial, and the Government's interest in using the profits of crime to fund
>these [law enforcement] activities should not be discounted."). Only Justice Blackmun
>questioned the acceptability of pecuniary motive as a legitimate goal of the forfeiture
>statute. Id. at 640 (Blackmun, J., dissenting). Calero-Toledo v. Pearson Yacht Leasing
>Co., 416 U.S. 663, 687 n. 26 (1974)("Seizure and forfeiture statutes also help
>compensate the Government for its enforcement efforts . . . ").
>73. See Alison Roberts Solomon, Note, Drugs and Money: How Successful is the Seizure
>and Forfeiture Program at Raising Revenue and Distributing Proceeds?, 42 Emory L.J.
>1149 (1993).
>74. The Justice Department evaluation cited above noted the potential diversion of law
>enforcement policy when it warned that "it is important. . . that task force commanders
>use [their expertise in locating assets] for the benefit of the community effort to control
>drugs." "JRSA, Five Year Review, supra note __ at 23.
>75. The requirement of impartiality is one aspect of the requirement that just decisions
>not be based on arbitrary, non-relevant factors, such as the identity of the person
>affected or of the decision-maker. We aspire to a "government of laws, not men."
>Elsewhere one of the authors has argued more generally that a distinguishing
>characteristic of any moral judgment is its universality, and therefore all those who
>forsake this requirement, whether for reasons of corruption or relativist ideology,
>abandon the tools with which to make moral decisions. See Eric Blumenson, Mapping
>the Limits of Skepticism in Law and Morals, 74 Texas L.Rev. 523 (1996). In recent
>years, however, this view has been questioned by scholars on a variety of grounds -- for
>example, that impartiality is unattainable; that morality must spring from an ethic of
>caring or identification rather than neutrality; or that we would do better to recognize
>the plurality and positionality of all judges and all judgments. See, e.g., Pat Cain, Good
>and Bad Bias: A Comment on Feminist Theory and Judging, 61 S. Cal. L. Rev. 1945
>(1988); Margaret J. Radin, The Pragmatist and the Feminist, in Pragmatism in Law and
>Society 127, 134 (M. Brint and W. Weaver, eds. 1991); Gerald B. Wetlaufer, Rhetoric
>and its Denial, 76 Va. L. Rev. 1545, 1568-9 (1990); Richard Rorty, Contingency, Irony
>and Solidarity 58-59 (1989).
>76. In re Murchison, 349 U.S. 133, 136 (1955)(under the due process clause, a judge
>cannot "be a judge in his own case [nor] try cases where he has an interest in the
>outcome"); Gibson v. Berryhill, 411 U.S. 564 (1973) (civil); Tumey v. Ohio, 273 U.S. 510,
>523, 532 (1927)(criminal). An impartial tribunal "safeguards the two central concerns of
>procedural due process, the prevention of unjustified or mistaken deprivations and the
>promotion of participation and dialogue by affected individuals in the decisionmaking
>process_[I]t preserves both the appearance and reality of fairness, 'generating the
>feeling, so important to a popular government, that justice has been done.'" Marshall v.
>Jerrico, 446 U.S. 238, 242 (1980), quoting Joint Anti-Fascist Committee v. McGrath, 341
>U.S. 123 (1951) (Frankfurter, J., concurring).
>77. Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927). See also Bracy v. Gramley, 1997 U.S.
>Lexis 3548 (June 9, 1997)("...the Due Process Clause clearly requires a 'fair trial in a
>fair tribunal,...before a judge with no...interest in the outcome..."). ; Hortonville Joint
>School Dist. No. 1 v. Hortonville Educ. Assn, 426 U.S. 482 (1976)(finding insufficient
>stake to constitute conflict); Pepsico Inc. v. McMillen, 764 F. 2d 458, 460 (7 Cir.,
>1985)(recusal required where counsel in case had considered employing judge); State
>v. Chinn, 146 W. Va. 610 (1961)(due process abridged where fines paid judges salary),
>and cases cited infra notes --- to ---.
>78. Tumey v. Ohio, 273 U.S. 510 (1927). In Tumey the mayor served as municipal
>judge in possession of liquor cases, and was paid expenses from the fines he collected.
>Tumey was convicted and fined $100, a judgment which the Supreme Court found in
>violation of the Fourteenth Amendment because the mayor's decision might have been
>clouded by two conflicts of interest. First, the mayor had "a direct, personal,
>substantial, pecuniary interest in reaching a conclusion against him in his case" because
>he was paid an emolument contingent on the fines he collected ($12 in this case). Id. at
>523. Second, the mayor's role combined inconsistent positions as judge and
>administrator, the latter giving him a professional interest and motive to convict in
>order to enhance his town's budget. This "necessarily involves a lack of due process of
>law." Id. at 534.
>79. Connally v. Georgia, 429 U.S. 245 (1977)(per curiam). Similarly, due process is
>abridged when the fact finder is empowered to rule on the professional license of a
>competitor See Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973)( holding the due
>process impartiality requirement violated when an administrative adjudicatory board of
>private optometrists adjudicated charges brought against a competitor).
>80. 273 U.S. 510, 533-34 (1927).
>81. 409 U.S. 57 (1972).
>82. The mayor impermissibly occupied two inconsistent positions as judge and
>administrator, the latter giving him a partisan motive to convict in order to enhance the
>town budget, and this necessarily abridged the due process guarantee. Id. at 409 U.S.
>58-62. The Court noted that "the fact that the mayor [in Tumey] shared directly in the
>fees and costs did not define the limits of the principle. Plainly [a] "possible
>temptation" may also exist when the mayor's executive responsibilities for village
>finances may make him partisan to maintain the high level of contribution from the
>mayor's court."
>83. In Tumey, the Court discussed what degree or nature of interest would disqualify a
>judge. It reviewed English common law to demonstrate that "the slightest pecuniary
>interest of any officer, judicial or quasi judicial, in the resolving of the subject matter
>which he was to decide, rendered the decision voidable." Tumey v. Ohio, 273 U.S. 510,
>523 (1927). Although the Court did not go so far, it enunciated the rule that any interest
>which would "offer a possible temptation to the average man as a judge" to forget the
>burden of proof or otherwise fail to "hold the balance nice, clear and true" requires
>disqualification. Only interest that is so "remote, trifling, and insignificant that it may
>fairly be supposed to be incapable of affecting the judgment" of an average man may be
>disregarded. Id. at 531-32.
>84. See In re Murchison, 349 U.S. 133, 136 (1955)(disqualification does not require
>actual judicial bias because "justice must satisfy the appearance of justice"); Tumey v.
>Ohio, 273 U.S. 510, 532 (1927)("There are doubtless mayors who would not allow . . .
>[the receipt of] $12 costs in each case to affect their judgment in it; but the requirement
>of due process of law in judicial procedure is not satisfied by the argument that men of
>the highest honor and the greatest self-sacrifice could carry it on without danger of
>injustice."); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)(finding impermissible
>"possible temptation" from conflict where judges decision increased value of class
>action judge had filed).
>85. See LSA-R.S. Title 32 Sec. 1550 (K) and (L)(40% of proceeds from sale of forfeited
>contraband allocated to court); Sec. 1550(B)(issuance of warrants for search or seizure
>of forfeitable property); Sec. 1550(C)(4)(when the defendant is acquitted, a rebuttable
>presumption against forfeitability applies unless the court finds a compelling reason for
>the forfeiture).
>86. 446 U.S. 238, 242 (1980)
>87. The Ohio statute at issue allocated 15% of the fines collected to deputy marshals
>as compensation for securing evidence in liquor cases, 10% to the prosecuting
>attorney, 15% to the police officers, and the amount of costs to the mayor/hearing
>officer. Tumey at 518-19.
>88. Tumey, 273 U.S. at 535. The court went on to specifically endorse offering rewards
>or a percentage of the recovery to informers. Id.
>89. The Fair Labor Standards Act of 1938, Sec. 16(e), as amended 29 U.S.C. Sec.
>216(e).
>90. Jerrico, Inc. v. Department of Labor, 24 Wage and Hour Cas. (BNA) 103; 86 Lab.
>Cas. (CCH) p33,775 May 7 (U.S. Dist. Ct., Dist. of Col., 1979).
>91. See Jerrico at 248(stating that the requirements of Tumey and Ward v. Village of
>Monroeville, 409 US 57 (1972), designed for officials in a judicial or quasi judicial
>capacity, are not applicable to prosecutors, and noting the wide discretion given to
>prosecutorial decisions).
>92. Jerrico, 446 U.S. at 248.
>93. Jerrico, 446 U.S. at 249-50 (citations omitted). Among the cases cited was
>Bordenkircher v. Hayes, 434 U.S. 357 (1978), the relevance of which is further
>discussed infra at n. ---. See also Young v. United States ex rel. Vuitton et fils S. A., 481
>U.S. 787, 807 (1987)("The requirement of a disinterested prosecutor is consistent with
>our recognition that prosecutors may not necessarily be held to as stringent a standard
>of disinterest as judges.")
>94. Jerrico, 446 U.S. at 250-52. "Unlike in Ward and Tumey, it is plain that the
>enforcing agent is in no sense financially dependent on the maintenance of a high level
>of penalties." Id. at 251.
>95. Jerrico, 446 U.S. at 245-46, 250-51.
>96. Jerrico, 446 U.S. at 243-44. However, this conclusion can be challenged factually.
>Nothing in the Court's statement of facts excludes the real possibility that the ESA's
>national office might require its regional administrators to seek higher fines because of
>the potential financial benefit it could receive in this or future years, regardless of how a
>particular regional office might fare.
>97. As the opinion noted, "justice must satisfy the appearance of justice." Jerrico, 446
>U.S. at 243, citing Offutt v. United States, 348 U.S. 11, 14 (1954).
>98. One obvious potential effect of an incentive system is a selective prosecution
>policy in which those whose prosecution would most enhance the government's coffers
>are targeted. The Court noted this issue but found it unnecessary on the facts to decide
>"whether different considerations might be held to apply if the alleged biasing influence
>contributed to prosecutions against particular persons, rather than to a general
>zealousness in the enforcement process." Jerrico, 446 U.S. at 250 n. 12.
>99. Gary Shons, Asset Forfeiture in California: A Preview of AB 4162, Prosecutor's
>Brief 5 (Fall 1988). That year the DEA seized $505 million in Sec. 881 forfeitures.
>100. Federal Seizure of Illegal Assets Nets Government $1.5 Billion Since 1985, U.S. L.
>Wk. Daily Ed., Feb. 4, 1991. "$460 million...were deposited into the fund in 1990, which
>was a 28 percent increase over fiscal 1989 and 15 times greater than the total in 1985,
>when the fund was established." Id. See also U.S. Dep't of Justice, Federal Forfeiture of
>the Instruments and Proceeds of Crime: The Program in a Nutshell 1 (1990).
>101. Sharon Walsh, Give and Take on the Hot Issue of Asset Forfeiture", Washington
>Post, Mar. 11, 1996, at F7. The article reports that the federal government has
>received the following amounts from asset forfeitures in criminal cases: 1986: 93.7
>million; 1987: 177.6 million; 1988: 205.9 million; 1989: 580.8 million; 1990: 459.6
>million; 1991: 643.6 million; 1992: 531 million; 1993: 555.7 million; 1994: 549.9
>million. These figures include non-drug related forfeited assets, particularly from
>insider trading cases. Id. During the period of major growth, 1985 through 1990, asset
>seizures increased at an average annual rate of 59%, with the Asset Forfeiture Fund
>inventory quadrupling to 1.3 billion. Smith, Forfeiture, supra note ---, at sec. 1.02, p.
>1-21 (Release ---, in 1993? 1994? ed.)(citing the Annual Report of the Department of
>Justice Asset forfeiture Program 5 (DOJ, 1990)).
>Reports on some U.S. Attorney's Offices show seizures equal to much or all of their
>operating budgets. See, e.g., Ruth Hawk,: Western District Office Pays for Itself and
>More, Pennsylvania Law Journal, Nov. 18, 1993, at 7 of Pittsburgh section ("According
>to U.S. Atty. Frederick W. Thieman, 'The 1993 figures demonstrate that [debt
>collection and 1.9 million in asset forfeitures] routinely pay for the operation of the
>entire U.S. Attorney's Office [of the Western District of Pennsylvania] . . .' He noted
>that the combined total -- more than $10 million -- exceed the entire operating budget
>of his office by about 75 percent."); Pratt and Peterson, supra note ---, at 671 ("In an
>eight month period during 1989, for example, the United States Attorney's office in the
>Eastern District of New York collected $37,000,000 from civil forfeitures", four times
>the operating budget)(citing the New York Law Journal, Jul. 27/1989 at 1, 21).
>102. In 1990 the Attorney General urged U.S. Attorneys to increase the volume of
>forfeitures in order to meet the annual budget target." . . . Failure to achieve the $470
>million projection would expose the Department's forfeiture program to criticism and
>undermine confidence in our budget projections. Every effort must be made to increase
>forfeiture income during the remaining three months of [fiscal year} 1990." Executive
>Office for United States Attorneys, U.S. Dept. of Justice, 38 United States Attorney's
>Bulletin 180 (Aug. 18, 1990), cited in United States v. James Daniel Good Real
>Property, 510 U.S. 43, 114 S.Ct. 492, 502, n. 2. (1993). This followed a June 21, 1989
>memorandum from Acting Deputy Attorney General Edward S. G. Dennis, Jr., to the
>same parties, which urged U.S. Attorneys to make forfeiture proceedings a priority: "It
>is imperative that we fulfill the commitment that was made to increase forfeiture
>production." Directive 89-1, contained in DOJ Asset Forfeiture Manual, V. 3. See also
>Apr. 22, 1991 memorandum from Prin. Assoc. Deputy Atty.-Gen. George Terwilliger,
>III, to all U.S. Attorneys, "Subject: Need for Increased Emphasized upon Criminal
>Forfeiture", contained in DOJ Asset Forfeiture Manual, vol. 3 (directing U.S. attorneys
>to "exert strong management direction" by ensuring "that your criminal prosecutors
>are aggressively focusing not only upon the conviction of individuals but also upon the
>civil or criminal forfeiture of their assets . . . "); Directive 91-12, Jul. 8, 1991
>Memorandum of Director of Executive Office of Asset Forfeiture Cary Copeland to,
>inter alia, all U.S. Attorneys, "Subject: Need to Expedite Asset Forfeiture Deposits,"
>contained in DOJ Asset Forfeiture Manual, vol. 3 ("Funding of initiatives important to
>your components will be in jeopardy if we fail to reach the projected level of forfeiture
>deposits . . . Please advise your staff of specific actions that can be taken to maximize
>deposits to the [Asset Forfeiture] Fund between now and the end of the fiscal year."); ;
>Memorandum from Attorney General Janet Reno, FBI Director Louis J. Freeh, and
>DEA Administrator Thomas Constantine, Asset Forfeiture Program Activity at 1 and 2
>(Feb. 12, 1996)("We are requesting that each United States Attorney...to develop ways
>to make the fullest, appropriate use of the forfeiture statutes...Forfeiture specialists
>should be involved early and consulted frequently during the investigation and
>prosecution of criminal cases, including settlement and plea discussions.")
>103. Directive # 91-14, Memorandum from Cary Copeland, Director and Chief Counsel
>of Exec. Office of Asset Forfeiture, dated Oct. 1, 1991, in DOJ Asset Forfeiture
>Manual Vol. 3.
>104. Department of Justice, Guide to Equitable Sharing of Federally Forfeited Property
>for State and Local Law Enforcement Agencies (1994).
>105. JRSA, Five Year Review, supra note __ at 10. In 1991, the peak year during the
>five year study, multijurisdictional drug task forces seized assets worth more than 346
>million dollars, a 147% increase over 1988 seizures. Id. at 9. These amounts include
>only those seizures by task forces receiving federal Byrne grants. They do not include
>assets seized by DEA or other task forces, or seizures under state forfeiture laws.
>106. JRSA, Five Year Review, supra note __ at 23. The report provides figures showing
>an 89% increase in asset seizures by task forces between 1988 and 1992, noting that
>such seizures "provide resources to task forces that have experienced decreased
>funding." Id. at 9.
>107. Indeed, in some departments, police salaries are paid directly from asset forfeiture
>funds, so long as the funds supplement rather than supplant budgeted positions.
>Executive Office for Asset Forfeiture, Office of the Deputy Attorney General, A Guide
>to Equitable Sharing of Federally Forfeited Property for State and Local Law
>Enforcement Agencies Sec. VII, p. 4(Dec. 1990).
>108. C. Northcote Parkinson, Parkinson's Law (Houghton Mifflin, 1957). One of
>Parkinson's laws is that officials seek to make work for each other, even when there is
>nothing to do. Id. at 4. As illustrations, he points to the British Colonial Office, which
>expanded exponentially as the British Empire was declining; and British Admiralty
>officials, who succeeded in almost doubling their number as ships in commission
>declined by two thirds. Id. at 8-11. "The officials would have multiplied at the same rate
>had there been no actual seamen at all," Parkinson concludes. Id. at 10.
>109. See, e.g., Russell Carolo and Doreen Marchionni, "Seizure Laws Have Been
>Wheels of Fortune for Tacoma Police," The [Tacoma] News Tribune, June 20, 1994 at
>A1 (reporting that the Tacoma Police Department had acquired and retained more than
>50 vehicles through forfeiture); Russell Carolo and Doreen Marchionni, "Above the
>Law: Seized or Stolen," The Tacoma News Tribune A1 (June 19, 1994)(reporting
>seixure and use of microwave ovens, baseball gloves, televisions, and automobiles).
>110. See Miller supra note --- at 319 (citing one such policy in Southern California, and
>quoting a drug enforcement agent there as saying, "my supervisor made it extremely
>clear that big money cases were a lot more favorable for your overall evaluation than
>big dope cases").
>111. See Associated Press, "Cops in Utah City will get a commission on Drug Busts",
>1/31/95 (quoting Mayor Mike Dalpiaz, author of the Helper, Utah Forfeiture Incentive
>Resolution, as promising that "if the city gets a house through a drug forfeiture, and we
>put it on the market and sell it for $50,000, then by God the guy who made the bust is
>going to get a nice bonus check for his work".) This ordinance raised community
>concerns about the risk of police planting drugs on people in order to seize their
>property. "Only Cops Seem to Like Town's Plan to Offer Cut of Drug Forfeiture
>Funds," Phoenix Gazette, 3/3/95 at 29.
>112. For an economist, asset forfeitures are one type of "consumer good" purchased by
>law enforcement agencies, along with neighborhood patrols, homicide investigations,
>forensic tests and all other law enforcement activities. The pricing of these various
>goods affects how much total enforcement the agency will buy, and how it allocates its
>purchases among alternative enforcement activities.
>When Congress channeled most forfeited assets back to the agency that seized them,
>the cost of asset seizure fell substantially, producing both an "income effect" (lower
>prices effectively increased the budget of the law enforcement agency) and a
>"substitution effect" (asset seizure became a more attractive purchase for law
>enforcement relative to alternative purchases as its price declined). The income effect
>should ultimately result in a larger quantity of law enforcement purchases (including
>asset seizures and excluding only some "inferior goods" which are, like Spam,
>purchased only when more attractive alternatives are not affordable). The substitution
>effect, however, is our focus, because it predicts that the forfeiture laws should
>powerfully alter law enforcement priorities, increasing asset seizures at the expense of
>other law enforcement activities. See Kreps, A Course in Microeconomic Theory,
>58-62 (1990). On price elasticity generally see William Samuelson and Steven Marks,
>Managerial Economics, 77-124 (2d ed. 1995).
>113. See infra note --- [CHI L Rev EDITOR: It includes language, "Suppose a
>defendant clearly establishes..."]
>114. The most recent convert to this tactic is the New York Police Department, which
>inaugurated its first reverse sting effort in October, 1997 with the arrest of 72
>marijuana buyers in Washington Square Park. Mayor Giuliani announced that such
>reverse stings would henceforth be instituted throughout the city. Norimitsu Onishi,
>"Mayor Unveils Sting Strategy Against Drugs," NY Times, Oct. 29, 1997, p. B1.
>115. Reverse stings are also attractive to police officers because they can be executed
>with little investigation, while great expenditures of time and manpower are usually
>necessary when the targets are drug dealers. This is not to say that reverse stings are
>always illegitimate. In some cases, they may help shut down open air drug markets by
>deterring buyers, or apportion punishment to include the suburban buyers who enter
>and help "corrupt" some inner city neighborhoods. But in ordinary circumstances,
>arresting buyers rather than sellers targets the less culpable and less dangerous
>individuals while neglecting more serious crimes, and involves the police in activity
>which may easily degenerate into a program of wholesale entrapment.
>116. J. Mitchell Miller and Lance H. Selva, Drug Enforcement's Double-edged Sword:
>An Assessment of Asset Forfeiture Programs, 11 Justice Quarterly 313, 325 (June 1994).
>The participant, Mitchell Miller, worked as a police officer for one year while attending
>a graduate school program in sociology. He reports that the officers he worked with
>preferred arresting a buyer with a bankroll and a good car to a trafficker with a large
>quantity of drugs and no cash, Id. at 324, and concludes that the forfeiture laws give law
>enforcement a powerful incentive to "allow the illegal drug market to continue. In this
>market, the drug enforcers and the drug traffickers become symbiotic beneficiaries of
>the 'War on Drugs.'" Id. at 333. See also Associated Press, "State Finds Room for
>Improvement in Drug Team" The [Louisville, Ky] Courier Journal, Sept. 5, 1993
>(citing a state report on a Paducah, Ky. Multijurisdictional task force that criticized the
>task force for making reverse stings "standard operating procedure."
>117. Id. at 328
>118. JRSA, Five Year Review, supra note __, at 23. The report provides figures
>showing an 89% increase in asset seizures by task forces between 1988 and 1992,
>noting that such seizures "provide resources to task forces that have experienced
>decreased funding." Id. at 9.
>119. Smith, Forfeiture, at Sec. 1.01, p. 1-14 (Release 16, in June, 1997 ed.)..
>120. Richard Miniter, Ill Gotten Gains, Reason p. 34 (Aug.-Sept. 1993).
>121. See the Department of Justice manual concerning racketeering forfeitures, which
>notes that a "preliminary investigation to determine what property would be subject to
>forfeiture may be required simply in order to obtain Departmental authorization for a
>RICO or CCE prosecution." David Smith and Edward Weiner, "Criminal Forfeitures
>Under the Rico and Continuing Criminal Enterprise Statutes," a manual of the Criminal
>Division of the Department of Justice (1980), at 7.
>122. Jerrico, supra note ---, at 249. In the situations described above, prosecutorial
>discretion is influenced by two related, arguably improper factors: the assets of the
>potential defendant and, more directly, the prosecutors financial stake in bringing the
>prosecution. Targeting suspects according to these factors may violate the due process
>right to an impartial prosecutor enunciated in Jerrico. But prosecutorial treatment
>based on the wealth of the defendant also implicates a different line of cases based on
>the equal protection guarantee. We take each constitutional claim in turn.
>The due process right to an impartial prosecutor. There are three questions that a court
>must address in order to resolve a due process challenge to prosecutions motivated by
>the financial rewards available through forfeiture: (1) Is financial self-interest
>constitutionally barred from prosecutorial consideration? (2) Must a defendant selected
>on this basis show prejudice in order to obtain a remedy? (3) If so, what constitutes
>such prejudice?
>On the first issue, Jerrico's reasoning makes clear that prosecutions selected according
>to the prospect of law enforcement enrichment may constitute an improper factor
>biasing the charging decision if they do not merely "stimulate officials to do their jobs"
>but bias them towards unjust prosecutions or excessive penalties. Jerrico at 249-50. As
>the Supreme Court noted in its strong admonition in Berger v. United States, 295 U.S.
>78, 88 (1935), "[t]he United States Attorney is the representative not of an ordinary
>party to a controversy, but of a sovereignty whose obligation to govern impartially is as
>compelling as its obligation to govern at all." We note, however, that the Supreme
>Court has afforded prosecutors substantial deference in its charging decisions; for
>example, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Court upheld harsher
>prosecutorial treatment in response to the defendants rejection of a plea bargain.
>Bordenkircher allowed prosecutors broad discretion, while noting that there are
>constitutional limits upon its exercise. Id. at 364-65. While the plea bargaining tactics at
>issue did not cross these limits according to the Court, the same should not be said of
>prosecutions selected according to the financial advantages they offer the prosecuting
>attorney's office, which are tied neither to the defendant's culpability or to any
>exigencies of the criminal justice system.
>Second, must the defendant show he suffered prejudice from the corrupted decision?
>Suppose a defendant clearly establishes that the prosecutor stood to benefit financially
>from her conviction. If she would have been prosecuted anyway and suffered the same
>disposition, and if she is guilty of the charges, does her lack of prejudice preclude a due
>process claim based on this conflict? It would seem that the conflict must have played
>some role in prosecutorial decision-making in order to constitute an "impermissible
>factor" at all. Against this one might argue that not all "factors" are necessarily
>dispositive, so a defendant who would have been treated the same absent the conflict
>should still have a claim; or that the language from Jerrico, quoted above,
>conspicuously does not enunciate a requirement of prejudice; or that the bright line
>rule applied to some conflict situations should be applied here, because of the practical
>difficulties in tracking agency decision-making and acquiring proof that a potentially
>corrupting factor was actually considered.
>Third, assuming a showing of prejudice is required, what constitutes sufficient
>prejudice? If a guilty defendant would not otherwise have been prosecuted or treated as
>harshly, this should be entirely sufficient to meet any prejudice requirement. Although
>the Bordenkircher opinion held that the prosecutor has broad discretion as to whom to
>prosecute, it did acknowledge that some factors are impermissible even where
>probable cause to indict exists. The Bordenkircher and Jerrico decisions clearly
>contemplate that certain arbitrary or vindictive prosecutorial decisions cannot be
>immunized by the fact that absent the factor, the defendant could have been properly
>prosecuted. Thus, any loss of even handedness in prosecutorial treatment should be
>found to entail cognizable prejudice (whether in investigation, charging, plea bargaining,
>granting of immunity, challenging evidence at trial, or other exercise of discretionary
>power).
>The equal protection right against selective prosecution: The right to equal protection of
>the laws, rooted in the Fifth and Fourteenth Amendments, provides a distinct challenge
>based not on the prosecutors conflicting interests but on his selecting defendants
>according to their assets. Imagine a prosecutorial policy that mandates targeting only
>asset-rich defendants; or a policy (equally forfeiture-driven, but at a different stage of
>prosecution) targeting poor defendants by mandating more lenient plea bargains for
>those wealthy defendants who agree to forfeit their assets. Would such selective
>prosecutions violate the equal protection guarantee?
>The equal protection right applies not merely to the laws as written but to their
>enforcement, Yick Wo v. Hopkins, 118 US 356 (1886), and therefore provides a defense
>to selective prosecutions. But because prosecutors with scarce resources are
>necessarily selective in whom they prosecute, the salient question is whether the
>prosecutor strayed beyond constitutional bounds in exercising his discretion. Equal
>protection cases have required defendants to show that other equally culpable violators
>have not been prosecuted and that this disparate treatment was "deliberately based on
>an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler
>v. Boles, 368 U.S. 448 (1962). Where a prosecutor has selected targets according to
>their wealth and the resulting group does not constitute a "suspect class" entitled to
>strict scrutiny, see San Antonio Independent School Dist v. Rodriguez, 411 U.S. 1, 25, a
>court will have to decide whether this classification is arbitrary or whether it "rationally
>furthers some legitimate, articulated state purpose and therefore does not constitute
>invidious discrimination." Id. At 17; Cleveland v. Cleburne, 476 US 432, 446 (finding
>that the retarded do not constitute a suspect class entitled to strict scrutiny, but must
>show that the classification is not "rationally related to a legitimate governmental
>purpose.") As the facts above show, a court would have more than sufficient grounds to
>rule that (1) fund raising may not be the overriding objective of prosecutorial decisions
>about whom to prosecute, and (2) selection by wealth is not rationally related to any
>legitimate objective of law enforcement, such as deterrence or retribution.
>As with the due process challenge, any equal protection claimant confronts the
>judiciarys reluctance to review prosecutorial decisions, Wayte v. United States, 470 U.S.
>598 (1985), and must rebut a presumption that prosecutors have properly discharged
>their official duties. United States v. Armstrong, 116 S. Ct. 1480 (1996), citing United
>States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). But some courts have
>nevertheless proved receptive to arguments that particular enforcement policies or
>decisions could not be related to a legitimate law enforcement purpose. See, e.g.,
>Esmail v. Macrane, 53 F 3rd 176 (7 Cir., 1995)(selective enforcement against an
>individual, where motivated by personal malice, may violate equal protection); United
>States v. Robinson, 311 F. Supp. 1063 (W.D. Mo. 1969)(finding the enforcement of a
>privacy statute against private detectives but not public officials is impermissibly
>arbitrary); Olshock v. Village of Skokie, 541 F. 2d 1254 (7 Cir 1976)(equal protection
>abridged when policemen were disciplined differently depending on whether they were
>represented by counsel); People v. Acme Markets, Inc., 37 NY 2d 326 (1975)(finding
>equal protection abridged when Sunday closing laws were enforced upon complaints
>which reflected private motives).
>123. See, e.g., 28 U.S.C. Sec. 991-998. This law, the Sentencing Reform Act of 1984,
>abolished parole and established a Sentencing Commission with the mandate of
>promulgating sentencing guidelines. The Sentencing Commission then removed the
>traditionally broad sentencing discretion from the trial judge, substituting a precise grid
>by which a determinate sentence is calculated. For example, the Guidelines provide
>particular points, corresponding to time to be served, for robberies committed with the
>use of a gun (plus 6), with an express death threat (plus 2), which was designed to
>obtain a controlled substance (plus 1), and so on. 18 U.S.C. app. Sec. 2B3.1
>(1996)(robbery). These aggravating factors, which increase the base level of the
>robbery offense (20) by the numbers provided, are respectively subsections (b)(2)(B),
>(b)(2)(F), and (b)(5).
>124. Drug cases are theoretically subject to assorted mandatory minimum sentences
>promulgated by the Anti-Drug Abuse Act of 1986, and by the parallel incarceration
>periods mandated by the Guidelines sentencing grid. However, if the prosecutor wishes
>to evade these sentences in service of an appealing plea bargain, he may obtain a much
>lower sentence in one of two ways. He may file a motion pursuant to 18 U.S.C. 3553(e),
>allowing the court to reduce the sentence for a defendant who has "substantially
>assisted" in the prosecution of others; or he may tell the federal probation department
>that the defendants crime involved a lesser quantity of drugs than was actually the case.
>125. According to Eric Sterling, Director of the Criminal Justice Policy Foundation,
>only 11 percent of drug offenders in federal prisoners are high-level traffickers, while
>more than 50% are low-level. Derrick Jackson, Our Fraudulent War on Drugs, Boston
>Globe, Sep. 13/96, at A27. First Circuit Chief Justice Juan Torruela has noted that in
>his experience, "penalties for drug trafficking are imposed on individuals other than
>those most culpable . . . The 'big fish," if caught at all, are able to work out deals with
>the government which may leave them with light sentences or even without any
>prosecution. This result . . . is essentially an immoral outcome which tarnishes our
>entire judicial system." Juan Torruella, The 'War on Drugs': One Judge's Attempt at a
>Rational Discussion, 14 Yale J. on Reg. 195, 256 (1997).
>Relatively harsher penalties for the "mules" often result because they usually have
>neither forfeitable assets nor useful information to trade for prosecutorial leniency.
>There are other factors as well, however. For example, in the drug area passions run
>high enough to taint the sentencing laws themselves, not merely their application. One
>well-noted example is the disparity between crack and cocaine mandatory sentences
>(100:1), despite the fact that crack and cocaine are identical chemically and possess the
>same addictive and abusive potentials. Because Black Americans are more likely to
>use crack, and White Americans cocaine, the effect of this has been to place huge
>numbers of the Blacks in jail while equally culpable Whites remain unincarcerated.
>Noting these facts, Attorney General Reno and "Drug Czar" Barry McCaffrey have
>urged that this disparity be reduced to 10:1 by invoking the five year minimum
>mandatory sentence on defendants possessing either 25 grams of crack (instead of the
>current 5 gram threshhold) or 500 grams of powder cocaine. Christopher Wren, "Reno
>and Top Drug Official Urge Smaller Gap in Cocaine Sentences," New York Times, July
>22, at A1 & A12. Another critic of the 100:1 disparity, Suffolk County, Massachusetts
>District Attorney Ralph Martin, says that it has "encouraged federal officers to treat
>street-level crack dealing as a major offense, draining resources away from major drug
>kingpins." Adrian Walker, "The Drug War: Two Wrongs to Right" Boston Globe, July
>27, 1997, E1 & E2, at E2.
>126. The forfeited assets were then distributed among the prosecutor's office and
>participating law enforcement agencies. Martin Haines, Prosecutors and Criminals
>Sharing Wages of Crime, New Jersey Law Journal, Oct. 19, 1992, at 17.
>127. Dick Lehr and Bruce Butterfield, "Small Timers Get Hard Time," Boston Globe,
>Sept. 24, 1995, at 31.; Money at Root of Deals, Boston Globe, Sep. 25, 1995, at 1, 6.
>Both articles were parts of a four part series entitled "Criminal Justice/Overdosing on
>the Drug War," published by the Boston Globe from Sep. 24 through Sept. 27, 1995.
>The investigation, by Boston Globe reporters, included a comprehensive examination
>of prosecution records from the four largest Massachusetts counties, as well as
>numerous case studies comparing defendants who were similarly situated except for
>their assets. For example, one defendant who sold cocaine to lower-level dealers was
>able to reduce a "mandatory" 15 year sentence to 2 Jan. 2 years served; another
>defendant -- less culpable in that undercover agents ran him through five relatively
>small drug buys before arrest in order to reach a level of quantity which would qualify
>him for a 10 year sentence -- received the full 10 years. The difference was that the first
>defendant had $460,000 in forfeitable bank deposits to offer in lieu of hard time.
>"Money at Root of Deals" at 6.
>In another, more celebrated case brought in Florida, the defendant escaped a life
>sentence by forfeiting yachts, his home, and millions of dollars in cash. United States v.
>Claude Duboc and John Knock, Docket # 1:94CR01009, Fed. Dist. Court of Fla. in
>Gainesville. This case attracted substantial attention, initially because attorney F. Lee
>Bailey was incarcerated for failing to turn over client properties the government
>claimed as its own. But a byproduct of the media's interest was that the public was
>given "a rare look at the usually secretive world of plea bargaining in big drug cases,
>[opening] a window on a growing controversy in narcotics prosecutions in Florida and
>nationally: how rich defendants like Mr. Duboc use the proceeds of their crimes to
>bargain for lighter sentences." Mireya Navarro, When Drug Kingpins Fall, Illicit Assets
>Buy a Cushion," N.Y. Times, Mar. 19, 1996, at A1. See also John Gibeaut, F. Lee
>Bailey's New Digs, ABA Journal at 25 (May 1996)(quoting a former prosecutor that the
>case "gives forfeiture a bad name. The point of forfeiture is to strip assets from the bad
>guys, not to make money for the government.
>128. Lehr and Butterfield, Money at Root of Deals, supra at n. ---, at 6.
>129. Libretti v. United States, 116 S.Ct. 356, 133 L. Ed. 2d 271, 516 U.S. ___ (1995).
>Libretti refutes one claim that is sometimes made, that prosecutorial conflicts are not
>dangerous because so long as there is an impartial tribunal down the line, any abuses
>can be corrected. So does the Jerrico opinion, only more explicitly. See Jerrico, supra
>note ---, at 249-50. ("the decision to enforce -- or not to enforce -- may itself result in
>significant burdens on a defendant . . . even if he is ultimately vindicated in an
>adjudication."). Cf. Ward v. Village of Monroeville, 409 US 57, 61-2 (1972)(opportunity
>for trial de novo does not obviate the need for an impartial tribunal at the first tier).
>130. Libretti, supra note --- at 116 S.Ct.370 (Stevens, J., dissenting) ( "No matter what a
>defendant may be willing to pay for a favorable sentence, the law defines the outer
>boundaries of a permissible forfeiture. A court is not free to exceed those boundaries
>solely because a defendant has agreed to permit it to do so . . . .Were a court to do
>otherwise, it would permit the parties to define the limits of its power.")
>131. Although wealthy defendants may be targeted in the investigatory stage, in the
>plea bargaining context the ultimate losers are the defendants without assets to trade
>for time. The harsher treatment they receive is a direct result of the prosecutors
>conflicting financial interest, and thus should be cognizable under the due process
>clause. An additional argument stems from the recent, unanimous Supreme Court
>decision in Bracy v. Gramley, __ U.S. __ (June 9, 1997), which held that a corrupt
>judge's favoritism towards other defendants who bribed him may have violated the
>petitioners right to an impartial trial by giving the judge a motive to camouflage his
>lenient treatment with a conviction: it would violate due process if the judge "was
>biased in this...compensatory sense...to avoid being seen as uniformly and suspiciously
>'soft on criminal defendants." Id. at ---.
>132. Report on the Death of Donald Scott, Michael D. Bradbury, District Attorney,
>Office of the District Attorney, County of Ventura, State of Calif. 37-41 (Mar. 30, 1993)
>[hereinafter Scott Report] Ariel photographs of the ranch did not show any marijuana
>plants. But Charles Stowell, a federal D.E.A. agent, took another flight over the ranch
>and made the claim, hardly plausible under the circumstances, that he was able to
>identify about 50 marijuana plants by their "distinct color". (Stowell viewed the ranch
>from an altitude of 1000 feet without binoculars, The usual procedure of photographing
>the suspect patch was not followed. Nor did the patch's relatively small size conform to
>the informant's report.) Then the U.S. Border Patrol conducted two ground
>reconnaissance missions onto the Scott property. These searches -- which could not be
>justified under Border Patrol's mandate to enforce federal immigration laws -- found no
>evidence of marijuana cultivation.
>133. Scott Report , supra note ---, at 9-12.
>134. Scott Report , supra note ---, at 37-41.
>135. The report found that the supporting affidavit asserted falsely that ground
>surveillance had confirmed the presence of the plants and that the agent had used
>binoculars, failed to reveal the unfavorable surveillance results, and contained
>numerous other misleading statements. Scott Report at 42.
>136. Scott Report supra note at 62.
>137. Scott Report supra note at 16. Although the ranch was situated in Ventura County,
>the report noted that the Ventura County Sheriff's Department was not included in the
>investigation or the raid, perhaps in order to avoid sharing the proceeds with it. Id. at
>50-52
>138. John Adams, a student of the writs of assistance cases, wrote that public outcry
>against the writs of assistance was one of the sparks leading to American
>independence, as discussed in M.H. Smith, The Writs of Assistance 251-256 (1978)
>(hereinafter "Writs"). For discussion and additional authorities on this point see M.
>Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, 68
>S. Cal. L. Rev. 1, 15 (1994)..
>139. See Smith, Writs, supra note ---, at 13 ("the acts of navigation and trade gave
>one-third each to the king, the governor of the particular colony, and the customs
>man"). Informants were commissioned by customs officers; newspaper advertisements
>seeking informants promised that they would be "handsomely rewarded and their
>names concealed." Id. at 128. Condemnations were extremely profitable for both, not
>least because smugglers chose not to defend rather than reveal their identities. Id. at
>13. See also Nelson B. Lasson, History and Development of the Fourth Amendment to
>the U.S. Constitution 57 (DaCapo Press, 1970) (quoting Lieutenant Governor Thomas
>Hutchinson's remark that his Governor, Bernard, "was very active in promoting
>seizures for illicit trade, which he made profitable by his share in the forfeitures").
>140. Writs of assistance were sought by people in need of money, and disreputable men
>were hired as informants. Smith, Writs, supra note ---, at 128. Because seized
>contraband was unlikely to be disputed in court, customs officers could often falsify the
>inventory of seized items, or as the Boston Gazette reported it on Feb. 16, 1761,
>"goods [were] catalogued by false names in order that another disposition of them
>might be made". Id. at 170. For discussion on analogous problems today, see pp.---
>141. Smith, Writs, supra note ---, at 562-3 (James Otis tirade against lawless searchs
>under the writ)., For discussion on the analogous problem today, see pp. ---
>142. The laws were enforced selectively, leaving alone close merchant associates of the
>customs officers. See Smith, Writs, supra note ---, at 101. For discussion on the
>analogous problem today, see pp. ---
>143. Smith, Writs, supra note ---, at 563. An earlier English analogue, the "Reward
>Statutes" of 1692 which paid informants for information leading to convictions, was
>discontinued in 1754 after several innocent people were executed on false information
>provided for the reward money. See John Langbein, Shaping the 18th Century Criminal
>Trial: A View from the Ryder Sources, 50 Chi. L. Rev. 1, 106-14 (1983). For discussion
>on the analogous problem today, see p ---
>144. The procedural advantages the Crown enjoyed resemble those confronting
>modern day forfeiture claimants. If the property was used in commerce, then each day
>spent fighting to establish a claim was another day's business loss. Consequently in
>colonial admiralty court officials and property owners struck deals that placed the owner
>in the peculiar position of paying the state for the return of property. (Because juries
>were unsympathetic, the Crown had transferred jurisdiction to admiralty judges in
>1696). There is one case of a subject who, having made such a bargain to get back his
>ship and cargo, sued at common law trespass for damages and prevailed. See Smith,
>Writs, supra note ---, at 181. For discussion on similarly coercive plea bargains enforced
>today, see pp. ---
>145. Article, probably by James Otis, denouncing the writs of assistance in Boston
>Gazette, Jan. Apr. 1762, reprinted in Smith, Writs, supra note ---, at 565-566.
>146. John Adams, quoted in Nelson Lasson, The History and Development of the 4th
>Amendment to the U. S. Constitution 59 (1937).
>147. This is particularly so because the most obvious legislative reform -- requiring
>forfeited assets to be deposited in the general fund rather than funneling them to the
>seizing agency -- would eliminate the destructive incentives we have described without
>reducing whatever benefits the forfeiture law can deliver -- whether measured in terms
>of drug enterprises shut down, contraband seized, drug dealers deterred, or even the
>conversion of drug proceeds into government revenue. We address this and other
>potential legislative reforms infra at Section IV.
>148. See supra note ---.
>149. Although forfeiture may have been intended for prosperous kingpins and large
>enterprises, many if not most law enforcement agencies have decided that it is most
>advantageous to pursue the more numerous low level dealers or users. See, e.g.,
>"Seizure Laws Have Been Wheels of Fortune for Tacoma Police," The [Tacoma] News
>Tribune, June 20, 1994 at A1 (only 16% of 1,000 seizures in Washington from 1992-94
>involved more than $1,000, and 33% involved $100 or less); Inequity Seen in Drug
>Forfeiture Law, New York Times, Sept. 3, 1993 at A17 (94% of the 6,000 forfeiture
>cases in 1992 involved less than $5,000); of 6,000 California. Small seizures have the
>twin advantages that the forfeiture opportunities are virtually endless, and claimant
>challenges to them are impractical because they would cost more than the amounts
>involved. See also JRSA, Five Year Review, supra note ___, at 23 (suggesting task
>force members consider "
>150. Schneider & Flaherty, War on Drugs Ruins Law Abiding Citizens, Pittsburgh Press,
>Aug. 11, 1991, at A1, A4 (reporting a nationwide survey of forfeitures over a ten month
>period). Another investigation of Volusia County, Florida forfeitures found that no
>charges were filed in three out of four forfeitures. Jeff Brazil and Steve Berry, Tainted
>Cash or Easy Money?, Orlando Sentinel Tribune, June 14, 1992, at A1.
>151. See Miller and Selva, supra note --- at 313 (concluding that the funds available
>through asset forfeiture caused police to concentrate on less serious cases and did not
>result in diminishing the quantity of drugs on the street.
>152. Nelson, supra note __, at 1327.
>153. Smith, Forfeiture, supra note ---, at sec. 1.01, p. 1-14 (Release 20, in June, 1997
>ed.). See also Charles Rangel, "Reagan's Zero Tolerance is a Zero Drug Policy,"
>Newsday, June 28, 1988, at 6.
>154. The yacht was later returned to its absentee owner. Smith, Forfeiture, supra note
>--- at Sec. 1.01, p. 1-15, n. 39 (Release 20, in June, 1997 ed.).
>155. Some have criticized the drug war as geared to protecting suburbia and the middle
>class while failing to address the more destructive problem in the inner cities. Robert
>Stutman, formerly head of the DEA New York office, notes that "[b]efore 1966 we
>concentrated purely on heroin and nobody paid attention. The predominant attitude
>among most Americans, and certainly most agents, was, 'Who cares who sells it as long
>as only black people are using it?' . . . [But then drugs began] leaving the ghetto, so all
>of a sudden they were becoming understood as a truly American problem." Robert
>Stutman and Richard Esposito, Dead on Delivery: Inside the Drug Wars, Straight from
>the Street (Warner Books, 1992). Stutman and Esposito bemoan the emphasis on law
>enforcement to the exclusion of treatment, education and other non-criminal
>approaches.
>156. See, e.g., Steven Wistosky, Crackdown: The Emerging 'Drug Exception' To The Bill
>of Rights, 38 Hastings L.J. 889, 898 (1987)(concluding that drug enforcement is now
>the "top priority, indeed the organizing focus" of the federal criminal justice system).
>157. Directive # 89-1, June 21, 1989 memorandum from Acting Deputy Attorney
>General Edward S. G. Dennis, Jr., to, inter alia, all U.S. Attorneys, contained in DOJ
>Asset Forfeiture Manual, V. 3. See also Directive 91-7, "Asset Forfeiture Talking
>Points", May 1991, prepared by Executive Office for Asset Forfeiture of the Justice
>Department ("The Attorney General has made asset forfeiture one of the Department
>of Justice's highest law enforcement priorities.")
>158. The reason for this lies in the nature of drug law enforcement. Typically the officer
>surveils a busy location where drug activity is known to occur. For each drug sale he
>observes, he radios his strategically located fellow officer who then arrests the buyer
>after he has left the location. The officer can continue arresting buyers for hours,
>undetected by the drug seller. At the end of his shift he receives overtime pay for the
>time it takes to process the arrests and (since most drug arrests occur at night) for
>court time the next morning. Moreover, because there are few triable issues when a
>suspect is caught selling or possessing drugs, most drug cases are disposed of quickly
>by a plea bargain, Mollen Commn Report at 37, and the officer may be able to claim a
>day's overtime pay for a brief appearance in court. See, e.g., Mark Bowden and Mark
>Fazlollah, Rogue Cops, Philadelphia Inquirer, Sep. 11, 1995, at A01 (Part II of series).
>159. Mark Bowden and Mark Fazlollah, Rogue Cops, Philadelphia Inquirer, Sep. 11,
>1995, at A01, (Part II of series). Bowden and Fazlollah report that "every collar on the
>night shift afforded the opportunity of overtime pay. A day in court could mean $100 to
>$200 in extra earnings. That year [Officer Baird] earned nearly half again as much in
>overtime as his salary_.With pressure from all quarters to do something about drugs,
>things like arrest totals and conviction rates offer at least paper proof that the battle is
>being waged."
>The benefits which flow from high arrest rates have been condemned for encouraging
>false arrests, and sometimes perjury as to the identity of the arresting officer ("trading
>collars for dollars"). Commission to Investigate Allegations of Police Corruption and
>the Anti-Corruption Procedure of the Police Department, Anatomy of Failure: A Path
>for Success (July 7, 1994) at 39 (hereinafter Mollen Commission Report); Richard
>Emery, "The Even Sadder New York Police Saga", New York Times, Dec. 12, 1987
>(concerning N.Y. transit police arrest quotas). They also promote incarceration over
>treatment, prevention, and other problem solving approaches. See Andrew Schneider
>and Mary Flaherty, "Presumed Guilty: The Law's Victims in the War on Drugs,"
>Reprinted from the Pittsburgh Press articles of Aug. 11 - 16, 1991 (p. 35 of reprint)
>160. For example, between 1980 and 1990 the number of federal drug convictions rose
>more than 300%, almost ten times the increase in non-drug convictions. Douglas C.
>McDonald et al., Department of Justice, Federal Sentencing in Transition, 1986-90, at 4
>(1992). See also Proposed Long Range Plan for the Federal Courts 2, 11 (March 1995),
>prepared by the Committee on Long Range Planning of the Judicial Conference of the
>U.S. (noting that from 1972 to 1994 federal drug prosecutions rose from 18% to 40% of
>the federal criminal dockets, and that this "has transformed the work of the federal
>district courts"); Dan Baum, "The Drug War on Civil Liberties", Nation 2 (June 29,
>1992)(reporting that Chief Justice Rehnquist chastised the Justice Department for
>burdening federal courts with petty drug cases); Katherine F. Brickey, Criminal
>Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135
>(1995)(concluding that mushrooming federal drug prosecutions are overwhelming the
>federal courts).
>161. See, e.g., "Treatment: Effective (But Unpopular) Weapon Against Drugs," RAND
>Research 3, 3 (Spring 1995)(reporting that treatment is 7 times more cost-effective
>than supply control programs in reducing cocaine consumption).
>162. Of the federal funds allocated to the drug war, the fraction devoted to law
>enforcement and interdiction has generally hovered around 2/3rds. Compare the Bush
>administration statistics, reported in Michael Massing, What Ever Happened to the 'War
>on Drugs', New York Review of Books, Jun. 11, 1992, at 42 ("...two thirds, or more
>than $8 billion goes for law enforcement and interdiction," citing the White House,
>National Drug Control Strategy, Budget Summary, Jan. 1992, at 200) with the Clinton
>1998 proposed budget, reported in Robert Dreyfuss, Hawks and Doves, Rolling Stone,
>8/7/97, p. 42 (reporting a percentage of 66%).
>163. Drug Policy Surges as a Campaign Issue, N.Y. Times, Sep. 17 1996, at A1, A18.
>(reporting that funding for the D.H.H.S.'s Substance Abuse and Mental Health
>Administration drug prevention program, and for Administration's treatment programs,
>were cut in 1996 to $89 million for each -- a cut of about 60% from 1995 which resulted
>in the closing of 79 prevention programs and 33 treatment programs).
>164. The monetary and career benefits that flow to officers from high arrest rates have
>been condemned for promoting incarceration over treatment, prevention, and other
>problem solving approaches. Like forfeiture except at more directly individual level,
>this incentive juxtaposes the officer's self-interest against non-criminal,
>community-based alternatives to arrest. See supra fn. ---.
>165. The prison-dependent economic sector includes workers and industreies
>servicing existing prisons, and many more businesses that will share in the $10 billion
>to be spent in prison construction over the next five years pursuant to the Crime
>Control Act of 1994, 42 U.S.C. Sec. 13708(a)(1)(1996).
>166. For example, a survey revealed that an unsurprising 90% of task force
>commanders thought task forces should be a top priority for funding; 64% said they
>should have priority over education or treatment programs, compared to 17% who
>thought they should have less priority. Task Force Commander Survey, supra note ---,
>at 10 & Exh 6. See also Robert Dreyfuss, "Hawks and Doves," Rolling Stone Magazine,
>8/7/97, at 44, quoting the former police chief of Kansas City, Missouri, Joseph
>McNamara, as saying that he long ago concluded that the drug was "is irrational, racist,
>unAmerican and unsuccessful" and wrote a dissertation that "was so critical of our drug
>policy that I never published it. If I had, I never would have had a career in law
>enforcement."
>167. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice
>System: Five Years Later 10, 23 (The Sentencing Project, Oct. 1995). Between 1986
>and 1991 there was an 828% increase in black, non-Hispanic females incarcerated for
>drug offenses in state prison. Id. at 20. In California, the growth rate of incarcerated
>drug offenders was even higher: 1500% during the 1980's. Zimring and Hawkins,
>Prison Population and Criminal Justice Policy in California, 32-35 (1992).
>168. Mauer and Huling, 10, 23. The authors report that the average length of time
>served by drug offenders increased 50% between 1986 and 1992, from 22 months to 33
>months. They also note that a drug arrest in 1992 was 4 times more likely to result in
>incarceration compared to 1980.
>169. Michael Sniffen, "U.S. Reports 1.6 Million in Nations jails by end of 95," Boston
>Globe, Aug 19, 1996, at A3 (quoting the Department of Justice Bureau of Justice
>Statistics Report of Aug. 18, 1996). The Globe also reported that one of every 167
>Americans is incarcerated, compared with 1 in 320 a decade earlier. 5.3 million people,
>almost 3% of the adult population, are now in prison, on parole, on probation, or
>otherwise supervised by a criminal justice agency. U.S. Dept. of Justice, Press Release:
>Probation and Parole Population Reaches Almost 3.8 Million (1996).
>170. Byrne grants do not pose the same conflict of interest problems that forfeiture
>laws do. When Byrne funded task forces target drug offenders they are not redefining
>their goals for financial self-interest; drug enforcement is the goal that Congress has
>assigned to them. However, as the Reese case following demonstrates, providing soft
>money for drug law enforcement creates incentives that similarly divert police officers
>from the proper execution of their jobs.
>171. 2 F.3d 870 (9th Cir., 1993).
>172. Id. at 874.
>173. Id. Broussard also told his men that "a lot of 'dirty' drug money would be passing
>through their hands, and that it would not really matter if they kept some of it for
>themselves" because the suspects would be in no position to complain. Id.
>174. Jeff Brazil and Steve Berry, Tainted Cash or Easy Money?, Orlando Sentinel
>Tribune, June 14, 1992, at A1. Blacks and Hispanics constituted 82% of the drivers
>searched, but only 5% of the drivers on the patrolled highway. "Color of Driver is Key
>to Stops in I-95 Videos," Orlando Sentinel, Aug. 23, 1992 at A1.
>175. See, e.g., David Heilbroner, The Law Goes on a Treasure Hunt, New York Times,
>Dec. 11, 1994 at Section 6, p. 70. Heilbroner reports that police in the small town of
>Sulpher, Louisiana seized about $5 million in four years, more than the entire New
>Orleans police force. "Typically, a speeder is pulled aside. When a lot of cash is found
>on him and his explanation is suspect, a drug dog is summoned. If the dog smells
>narcotics, the police seize the money." As detailed supra at note ---, most paper
>currency is now contaminated and tests positive for cocaine.
>176. $60 Million Theft by Sheriffs Deputies Alleged, Los Angeles Times, April 1, 1993 at
>B1 (quoting L. A. Sheriffs sergeant Robert Sobel, "My team seized about $10 to $15
>million, and none of it was straight...[they were] legal street robberies."]
>177. Dateline NBC, "Probable Cause? Policemen in Louisiana harass motorists and
>seize their property for no apparent reason," Jan. 3, 1977 at Westlaw 5, 18. Although
>such traffic stops were pretexts for forfeiture fund-raising, a recent Supreme Court
>decision largely excludes ulterior motives from Fourth Amendment analysis by holding
>that the existence of probable cause renders such motives irrelevant. Whren v. United
>States, 116 S. Ct. 1769 (1996)(rejecting as irrelevant defendants claim that vehicle
>stops targeted blacks). For a critique of the Courts analysis, see M. Tracey Maclin,
>"Race and the Fourth Amendment," 51 Vand. L. Rev. ___ (forthcoming, Mar. 1998).
>178. See infra note ---.
>179. See supra note 1.
>180. This clause provides: "No money shall be drawn from the Treasury, but in
>Consequence of Appropriations made by Law; and a regular Statement and Account of
>the Receipts and Expenditures of all public Money shall be published from time to
>time."
>181. Government funds coming into the hands of an officer or agent of the United States
>must be paid immediately into the Treasury (31 U.S.C. Sec. 484, 3302(b)(1982)). See
>also 18 U.S.
>182. 31 U.S.C. Sec. 1341(a)(1)(1982)("An officer or employee of the United States
>Government may not make or authorize an expenditure or obligation exceeding an
>amount available in an appropriation or fund for the expenditure or obligation; or
>involve [the] government in a contract or obligation for the payment of money before an
>appropriation is made unless authorized by law.")
>183. According to the General Accounting Office, "The prohibition against
>augmentation is a corollary of the separation-of-powers doctrine. . . . Restated, the
>objective of the theory against augmentation of appropriated funds is to prevent a
>government agency from undercutting the congressional power of the purse by
>circuitously exceeding the amount Congress has appropriated for that activity. Sec. 51
>Comp. Gen. 506, 507 (1972). Principles of Federal Appropriations Law, United States
>General Accounting Office, Office of General Counsel, pp. 5-62. Statutory counterparts
>to this doctrine include 31 U.S.C. sec 1342 (1982)(prohibiting government the
>acceptance of voluntary service except in defined emergencies) and 18 U.S.C. Sec. 209
>(1982)(barring supplementation of government salaries with third party funds).
>184. Supreme Court cases articulating this principle include Cincinnati Soap Co. v.
>United States, 301 U.S. 308, 321 (1937); Bradley v. United States, 98 U.S. 104, 106-08
>(1878); Knote v. United States, 95 U.S. 149, 154 (1877). According to the General
>Accounting Office, "the effect of 31 U.S.C. Section 484 is to ensure that the executive
>branch remains dependent on the Congressional appropriations process. . . [It]
>emerges as another element in the statutory pattern by which Congress retains control
>of the public purse under the separation of powers doctrine. Sec. 51 Comp. Gen. 506,
>507 (1972). Principles of Federal Appropriations Law, United States General
>Accounting Office, Office of General Counsel, pp. 5-65)
>185. 28 U.S.C. 881(e)(2)(B); 28 U.S.C. 524(c)(1).
>186. That is, an exercise either directly or through a constitutional delegation to the
>Department of Justice. For reasons that will become clear in the balance of this section,
>the issuance of this kind of blank check can hardly be considered a direct appropriation
>since the agency gets to determine the size of its budget. It is rather a delegation, and
>because it is a delegation of basic legislative power, an unconstitutional one. See text
>infra at notes ---.
>187. See, e.g., Mistretta v. United States, 109 S. Ct. 647, 677 (1989)(Scalia, J.,
>dissenting)("[T]he basic policy decisions governing society are to be made by the
>Legislature. Our Members of Congress could not, even if they wished, vote all power
>to the President and adjourn sine die.") Article I, which provides that "all legislative
>powers herein granted shall be vested in a Congress," prohibits the transfer of this
>power.
>188. See infra note ---.
>189. See also Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S.
>607 (1980) at 685 (Rehnquist, C.J., concurring)(the non-delegation doctrine is designed
>to ensure "that important choices of social policy are made by Congress") and at
>717-18, n. 30 (Marshall, J., dissenting)(same)
>190. Industrial Union, supra note ---, at ---; J. W. Hampton and Co. v. United States, 276
>U.S. 394, 409 (1928); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).
>191. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1934)(finding the National
>Industrial Recovery Act unconstitutional in delegating to the NRA broad, standardless
>authority to establish codes of fair competition); Panama Refining Co. v. Ryan, 293 U.S.
>388 (1935)(striking down standardless statute granting the President discretionary
>power to prohibit interstate transportation of hot oil); Carter v. Carter Coal Co., 298
>U.S. 238 (1936)(striking down a delegation of legislative authority to price-setting
>boards elected by coal producers).
>192. National Cable Television Association v. United States, 415 U.S. 336, 341
>(1974)(citing Schechter, and narrowing the criteria enacted to govern the FCC in order
>to avoid an unconstitutional delegation of the power to tax); Industrial Union Dept.,
>AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980)(narrowing the discretion
>of the Secretary of Labor in promulgating OSHA standards to avoid unconstitutional
>delegation).
>193. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607
>(1980).
>194. Id. at ---. The plurality opinion construed the Secretary's delegated authority
>narrowly to avoid unconstitutionality, placing the challenged regulation beyond the
>legislative delegation; while Justice Rehnquist found the statute itself an
>unconstitutional delegation of legislative power. See also American Textile
>Manufacturer's Institute v. Donovan, 452 U.S. 490, 545-49 (1981)(Justice Rehnquist,
>joined by Chief Justice Burger, dissenting on grounds that the OSHA standard was
>promulgated pursuant to an unconstitutional statute which delegated lawmaking power.)
>195. INS v. Chadha, 462 U.S. 919 (1983).
>196. South Dakota v. United States Department of the Interior, 69 F.3d 878, 885 (1995).
>Following this decision, the Government changed its position and promulgated a
>procedure for judicial review of the Secretary's decisions; a preamble to the regulation
>conceded that the Secretary was precluded from taking the land at issue in the Eighth
>Circuit case. Based on this reversal, the Supreme Court granted the government's
>petition for certiorari, vacated the judgment, and remanded the case to the Court of
>Appeals with instructions to remand the case to the Secretary to reconsider his
>administrative decision. Department of the Interior v. South Dakota, -- U.S. --, 117 S. Ct.
>286 (1996). Justice Scalia, joined by Justices O'Connor and Thomas, dissented, arguing
>that to grant certiorari, vacate and remand because "the Government, having lost
>below, wishes to try out a new legal position" is unfair. See also South Dakota v. United
>States Dept. of Interior, 1996 WL 743501, -- F. 3d --, (8th Cir., 1996)(remanding to
>Secretary of Interior for reconsideration pursuant to Supreme Court order).
>197. Byrd v. Raines, 1997 WL 169409 at 11, -- F. Supp. -- (D.D.C., 1997)("[E]ven if
>Congress may sometimes delegate authority to impound funds, it may not confer the
>power permanently to rescind an appropriation or tax benefit that has become the law of
>the United States. That power is possessed by Congress alone, and, according to the
>Framers' careful design, may not be delegated at all.") The Line Item Veto Act, 2
>U.S.C. Sec. 691 (1996), allowed the President to sign a bill into law and then "cancel"
>any dollar amount of discretionary budget authority, any item of new direct spending,
>and any limited tax benefit. Id. at Sec. 691(a). Cancellation would take effect unless
>Congress reenacted a canceled item within thirty days of Presidential notification. Id. at
>Sec. 691(d)(b), (c)(1).
>198. See Raines v. Byrd, 117 S. Ct. 2312, 2322 (1997). Seven Justices refused to
>address the merits because the President has not yet exercised the veto. (He did so for
>the first time on August 11, 1997.) Justices Stevens and Breyer dissented, finding the
>threat of a veto sufficient to restructure the relationship between the branches. Justice
>Stevens, the only Justice to explicitly reveal his view on the merits, noted that he
>would find the law unconstitutional.
>199. Industrial Union Dept., supra note ---, at --- (Rehnquist, concurring); Mistretta v.
>United States, 488 U.S. 361, 676 (1989)(Scalia, dissenting).
>200. See, e.g., Russell Covey, Adventures in the Zone of Twilight: Separation of Powers
>and National Economic Security in the Mexican Bailout, 105 Yale L. J. 1311 (1996);
>David Schoenbrod, The Delegation Doctrine: COuld the Court Give it Substance?, 83
>Mich. L. Rev. 1223 (1985); John Ely, Democracy and Distrust 132-134 (1980); Peter
>Aranson, Ernest Gellhorn and Glen Robinson, A Theory of Legislative Delegation, 68
>Cornell L. Rev. 1 (1982); McGowan, Congress, Courts and Control of Delegated Power,
>-- Columbia L. Rev. 1119 (1977); Paul Gewirtz, The Courts, COngress, and Executive
>Policy-Making: Notes on Three Doctrines, 40 Law and Contemp Probs. 46, 49-65 (1976).
>201. See, e.g., Alexander Hamilton, Explanation in 8 A. Hamilton, Works 122, 128
>(H.C. Lodge ed. 1885) (Nov. 11, 1795) ("no money can be expended, but for an object,
>to an extent, and out of a fund, which the laws have prescribed"); Louis Fisher,
>Distribution Of Constitutional Authority: How Tightly Can Congress Draw The Purse
>Strings?, 83 A.J.I.L. 758 (1989) ("The Framers were familiar with efforts by English
>kings to rely on extra-parliamentary sources of revenue for their military expeditions
>and other activities....The rise of democratic government is directly related to
>legislative control over all expenditures."); 43 Op. Att'y Gen. 24 (1980) at 4-5 (stating
>Congress is required to determine the purposes and amounts of government
>expenditures); Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343, 1352
>(1988)("appropriations constitute legislative specifications of the powers, activities, and
>purposes -- what we may call, simply, "objects" -- for which appropriated funds may be
>used.") Stith provides a comprehensive analysis of Congress' obligations in exercising
>its appropriations power. See also 31 U.S.C. Sec. 1301(a)(1982)(appropriations "shall
>be applied only to the objects for which the appropriations were made except as
>otherwise provided by law." For an argument opposing this interpretation of the
>constitutional role of the appropriations process, see J. Gregory Sidak, "The
>Presidents Power of the Purse,", 1989 Duke L. J. 1162 (1989).
>202. Stith, supra note ---, at 1345-46. Stith maintains that because Art. I, Sec. 8
>enumerates Congress' powers, the appropriations clause in section 9 does not grant
>power but rather "affirmatively obligates Congress to exercise a power already in its
>possession." Id. at 1348. "Congress abdicates, rather than exercises, its power of the
>purse if it creates permanent or other open-ended spending authority that effectively
>escapes periodic legislative review and limitation." Id. at 1345. Stith's analysis builds
>on her conception of the appropriations process as effecting two constitutionally
>mandated principles, which she calls the Principles of the Public Fisc and of
>Appropriations Control. The former is the principle that all monies received from
>whatever source by any part of the government are public funds. The "Principle of
>Appropriations Control" prohibits expenditure of any public money without legislative
>authorization. Id. at 1345.
>203. Kelley Shannon, "Seized Drug Money to be Used For Prisons," Houston
>Chronical (Sep. 28, 1989).
>204. OPM v. Richmond, 496 U.S. 414, 428 (1989). The Court described this function as
>Sec. 9's "fundamental and comprehensive purpose." Id. In another legislative
>delegation case, this one involving the Presentment Clauses, the Court observed that
>"the purposes underlying the Presentment Clauses...must guide resolution of the
>question whether a given procedure is constitutional." Chadha, supra note ---, at 946.
>205. A permanent appropriation "does not require repeated action by the Congress to
>authorize its use". U. S. Gen. Accounting Office of General Counsel, Principles of
>Federal Appropriations Law, 2-5 (1982).
>206. See 31 U.S.C. Sec. 3123 (1982).
>207. For example, a standing appropriation for social security payments was enacted by
>42 U.S.C. Sec. 401-423 (1982) (Social Security).
>208. The Anti-Deficiency Act establishes an exception for agencies to incur an
>obligation in advance of an appropriation if "authorized by law." 31 U.S.C. Sec.
>1341(a)(1)(1982). Of course, a statute authorizing such advance expenditures must also
>comport with the constitutional requirements of the appropriations clause.
>209. Stith regards the underlying substantive legislation establishing the entitlement,
>or authorizing the government to incur an obligation, as the "real appropriation for
>constitutional purposes." Stith, supra note ---, at 1382. "When Congress decides the
>substantive contours of the backdoor spending program, it decides, to a large extent,
>the proper funding level of the program....In each of these instances, the form of the
>actual legislative permission to draw funds from the Treasury is largely irrelevant,
>because the government's monetary obligation is based on previous legislative
>action....[Such backdoor] spending is consistent with the constitutional norm requiring
>Congress to control the public fisc as long as Congress clearly defines the activity
>being funded, provides a time limitation on the spending program, implicitly or
>explicitly decides the total amount of spending authority, and undertakes periodic
>legislative review. Id. at 1380, 1382.
>210. The Miscellaneous Receipts Act requires all sums received by the government to
>be deposited in the Treasury, but Congress has legislated exceptions to this
>requirement, allowing certain agencies to establish revolving funds or retain fees or
>gifts. A revolving fund is designed for government enterprises designed to be at least
>partly self-sustaining, such as the Postal Service, the Federal Deposit Insurance
>Corporation, a government loan program or a Turnpike Authority. The activity of the
>agency is at least partly sustained by the income it produces. Apart from such dedicated
>revolving funds, Congress has also authorized certain agencies to retain the user fees it
>charges, see e.g. Independent Offices Appropriation Act of 1952, 31 U.S.C. Sec. 9701
>and National Cable, supra note --- , or retain certain gifts, see e.g. 22 U.S.C. Sec.
>2455(f)(1982)(USIA authority to receive and utilize conditional gifts). See also Stith,
>supra note 205, at 1365 - 81 (detailing exceptions to the dual requirements that all
>funds collected be deposited in the Treasury, and that all spending be pursuant to a
>specific appropriation.)
>211. For related reasons, the Supreme Court construed the Independent Offices
>Appropriation Act, 1952, to permit the FCC to collect fees based only on the value of
>its services to the recipient, not on the public interest which might be served by the
>collection. The latter "if read literally, carries an agency far from its customary orbit and
>puts it in search of revenue in the manner of an Appropriations Committee of the
>House." National Cable, supra at note ---, at 341 (construing the statute to avoid
>abriding Art. I, Sec. 8, cl. 1, vesting Congress with the "power to lay and collect
>taxes.") Similarly, one important factor in upholding the delegation at issue in Skinner
>v. Mid-America Pipeline Co., 490 U.S. 212 (1989), was that Congress limited the
>aggregate amount of pipeline user fees the agency could charge, and also specified that
>the fees be set according to "volume miles, miles, or revenue miles". Id. at 219.
>212. See supra note 102.
>213. See Stith, supra note 205, at 1383-84. Stith argues that budgetary oversight is
>especially important in areas where the Executive has a broad discretion in defining
>government policy, and points to federal prosecutions as an example. In this area, "the
>'object' specifications in appropriations are necessarily broad...[and] the Executive
>bears primary responsibility for determining how and where to assert a federal
>presence. If Congress creates spending authority which is open-ended with respect to
>amount and duration...it effectively concedes any role in defining and constraining
>executive -- that is, governmental -- action." Id.
>214. Legislative delegations have been found appropriate when necessary to avoid
>enmeshing legislators in "the sort of intricate, labor intensive task" better suited to
>administrators, Mistretta v. United States, 488 U.S. 361, 379 (1989)(upholding delegation
>to the U.S. Sentencing Commission); or because the legislature would necessarily
>speak in terms too general to suffice, see, e.g., American Power and Light Co. v. SEC,
>329 U.S. 104, 105 (1946); or to provide more expeditious or flexible responses than
>Congress can manage, see, e.g., Zemel v. Rusk, 381 U.S. 1, 17 (1965) and United States
>v. Grimaud, 220 U.S. 506, 516 (1911); or to utilize the kind of expertise that a
>specialized agency can develop and provide, Mistretta, supra at 368.
>215. The asset retention law is a good illustration of Stith's warning that "Congress
>renders meaningless the Principles of the Public Fisc and of Appropriations Control if it
>creates spending authority without amount or time limitations and fails to subject such
>authority to periodic legislative review." Stith, supra note 205, at 1382.
>216. Panama Refining, 293 U.S. at 421 ("Congress is manifestly is not permitted to
>abdicate, or to transfer to others, the essential legislative functions with which it is thus
>vested."); Field v. Clark, 143 U.S. 649, 692 ("That Congress cannot delegate
>legislative power to the President is a principle universally recognized as vital to the
>integrity and maintenance of the system of government ordained by the Constitution.");
>Byrd v Raines, supra note ---, at 965 F. Supp. At 36, reversed on other grounds, 117 S.
>Ct. 2312 (1997)("Before the question of a delegation's excessiveness ever arises...a
>court must be convinced that Congress did not attempt to alienate one of its basic
>functions.")
>217. Michael Glennon, Strengthening the War Powers Resolution: The Case for
>Purse-Strings Restrictions, 60 Minn. L. Rev. 1, 32 (1975)
>218. Edward Corwin, The Constitution 134 (Harold Chase and Craig Ducat, eds. 1920,
>1978). See also THE FEDERALIST NO. 58, at 394 (J. Madison) (J. Cooke ed. 1961),
>in which James Madison characterized the appropriations power as "the most complete
>and effectual weapon with which any constitution can arm the immediate
>representatives of the people_"); Alan Feld, Shutting Down the Government, 69
>Boston Univ. L. Rev. 971, 989 (1989)(describing the power of the purse as "the most
>viable limitation that legislation and the Constitution places on executive discretion").
>Cf. INS v. Chadha, supra note ---, at 957 (Article I's enduring checks "protect the
>people from the improvident exercise of power").
>219. 1 The Records Of The Federal Convention Of 1787, at 139-40 (M. Farrand ed.
>1937). The Iran-Contra scandal was a recent and egregious illustration of this danger.
>There the executive branch usurped the appropriations power by having Oliver North
>obtain funds (through secret arms sales to Iran) which were then channeled directly to
>the Nicaraguan Contras. See Congressional Report On Iran Contra, H. Rept. No.
>100-433, S. Rept. No. 100-216, Iran-Contra Affair, 1987. As the report noted at 411,
>"the Constitution contemplates that the Government will conduct its affairs only with
>funds appropriated by Congress." "[U]under the view of North and Poindexter, a
>President whose appropriation requests were rejected by Congress could raise money
>from private sources...[even for] domestic programs. That is the path to dictatorship."
>Id. at 390. Of course, the forfeiture case is distinguishable in that Congress has itself
>authorized the executive to bypass the appropriations process. How important is this
>distinction? To answer that question, we would do well to ask another: if Congress had
>been told about Oliver North in advance, and had passed a law institutionalizing a
>secret, self-financing "off-the-shelf" White House operation whose scope and activities
>would be determined by the entrepreneurial skills of its agents, would the
>constitutional order have been any less threatened?
>220. See House Appropriations Subcommittee on the Departments of Commerce,
>Justice and State (March 28, 1995) (testimony of Joseph Brann, Director of the
>Community Oriented Policing Services Program ("block-granting law enforcement
>money led to waste, fraud, and abuse, and not a commensurate reduction in crime").
>221. In a nationwide survey of task force commanders, 97% of task force commanders
>reported local law enforcement agencies were components of their task forces, but just
>over Jan. 4 included federal law enforcement agencies. James Coldren, Jr., et al,
>Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task
>Force Commanders, 9 (Aug 1993).
>222. 42 U.S.C. Sec. 3754(a).
>223. 42 U.S.C. Sec. 3754(e).
>224. See supra note 1.
>225. JRSA, Five Year Review, supra note 1, at 10. This amount includes only those
>seizures by task forces receiving federal Byrne grants. It does not include assets
>seized by DEA or other task forces, or seizures under state forfeiture laws.
>226. See, e.g., Winston-Salem/Forsyth County Board of Education, 902 F.2d 267 (4 Cir.,
>1990), in which local police seized over $10,000, temporaily turned it over to the D.E.A.
>for federal adoption, and then received most of it back for their own use. Although the
>state constitution required the funds to be used for public school maintenance, and
>prohibited the transfer to the D.E.A., the court found that the federal government could
>adopt a seizure even when the person seizing the property was prohibited from seizing
>or transferring it under state law. In other words, the federal route allowed state police
>to directly profit from their own lawlessness.
>227. Three scholars who attempted to study the Byrne program found that its
>administrative complexity "makes it difficult, and perhaps impossible, to assess the
>program's impact on violent crime, drug trafficking or other specific crime prevention
>goals on a national scale." Should Washington Fight Crime?, editorial in Investor's
>Business Daily, Dec. 13/95, at A2 (quoting report by John J. DiIulio, Steven K. Smith,
>and Aaron J. Saiger.)'
>228. The survey obtained information from 528 task force commanders across the
>country, James Coldren, Jr., et al, Multijurisdictional Drug Task Force Operations:
>Results of a Nationwide Survey of Task Force Commanders i (hereinafter Task Force
>Commander Survey) (Aug 1993).
>229. Id. at 16 (cited in note 33). The report also states, "The impact of MDTFs on the
>availability of drugs, drug trafficking, drug abuse or other indicators has been difficult to
>determine, but is generally presumed to be positive by those involved in task force
>operations." Id. at 2.
>230. Id. at 17.
>231. Id. at 18-19.
>232. The total kilograms of cannabis (marijuana and hashish) removed from circulation
>exceeded the kilograms of cocaine removed by a ratio of 26 to 1. Five Year Review at 8
>(cited in note 1.)
>233. Task Force Commander Survey, at 10.
>234. This investigation has been closely reported by Bill Bartleman, David Fraser and
>Robin Divine in The Paducah Sun since January, 1996.
>WANT was established in 1988 with Byrne grant funding. Although 20 law enforcement
>agencies were nominally members, it was staffed and run by members of the Paducah
>Police Department, and given a separate office in the police building's basement. The
>event triggering media attention was the removal of WANT from these separate
>headquarters to an office within the Paducah Police Department, in response to
>criticisms that WANT had been hindering investigations by other law enforcement
>agencies. See Associated Press, "State Finds Room for Improvement in Drug Team"
>The [Louisville, Ky] Courier Journal, Sept. 5, 1993; Robin Divine, "Paducah Overhauls
>Drug Investigation Unit," The Paducah Sun, Feb. 14, 1996, A1; David Fraser, "Police
>asked to investigate loss of evidence," Paducah Sun 6/22/96 pp 1A, 12A.
>235. Authorities believe that the money is either evidence or property seized from
>drug dealers from hundreds of separate drug-related incidents.
>236. The Paducah Sun editorialized, "...The discovery of the money and the
>management breakdown it suggests are disturbing...The developments provide further
>confirmation that WANT operated with far too much independence and far too little
>accountability ...[T]he strictest accounting and supervisory backup are demanded;
>instead they were conspicuously lacking. The result, as we see, is a scramble by top
>city officials to explain how $60,000 can suddenly show up in a municipal space." The
>Paducah Sun, Feb. 27, 1996
>237. See, for example, Directive 87-1, Memorandum from Assoc. Atty. Gen. Stephen
>Trott to all U.S. Attorneys , Seized Cash (Mar. 13, 1987), in DOJ Asset Forfeiture
>Manual at B-477 (cited in note 62) ("The security, budgetary, and accounting problems
>caused by retention of large amounts of cash is causing great concern within the
>Department and the Congress."); Senate Committee on Governmental Affairs at 7
>(Dec. 14, 1995) (statement of Charles Bowsher, Controller General of the United
>States) ("audits found that Customs did not have adequate accountability over tons of
>illegal drugs and millions of dollars of cash and property seized or used in its
>enforcement efforts...").
>238. See generally Coldren, et al, Multijurisdictional Drug Task Force Operations (cited
>in note 33). 78 percent of task force commanders rate seizing assets as one high
>priority. "The most significant change [in task forces occuring since their inception] is
>in the number of task forces that now place a high priority on asset seizures and
>promoting awareness within the community compared to when the task forces began."
>The most common change reported in the operation of task forces was seizing assets;
>99% of those who changed their emphases said they had increased emphasis on asset
>seizure. James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa
>Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide
>Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics Assn.,
>at 7 and Exhibit 4.
>239. For example, WANT's 1995 application for federal grant money declared an
>objective of a 20% rise in asset seizures. David Fraser, want applications place burden
>on Gorden, officer. Paducah Sun 1A, 18A (Mar. 22, 1996).
>240. David Fraser, "Some cash seizures wrong," Paducah Sun, 1A, 12A (Mar. 14,
>1996).
>241. David Fraser and Bruce Gardner, WANT records emphasize deals of smaller scale,
>The Paducah Sun, 1A, 12A (Mar. 16, 1996).
>242. David Fraser, More WANT money found, Puducah Sun, 1A, 13A, Mar. 13, 1996.
>243. Editorial, Police Woes: Lost evidence reflection on WANT, Paducah Sun, at 4A (Jun.
>21, 1996).
>244. A 1993 study conducted by the state's criminal justice agency, the Justice Cabinet,
>cited WANT for failing to establish adequate procedures for handling cash and storing
>evidence (as well as for as misuse of equipment and resources, inadequate leadership,
>and lack of accountability.) WANT Grant Program Monitoring - Final Report (Sept. 2,
>1993).
>245. Ky. Rev. Stat. Ann. Sec. 218A.435 (1995).
>246. Bill Bartleman, Hoover: Plan about WANT not followed, Paducah Sun 1A, 8A (Mar.
>5, 1996). Byrne grant money may be spent for carefully delineated items. It may not be
>used to pay for budgeted items or cost overruns. See War on Drugs, Federal Assistance
>to State and Local Drug Enforcement at 20-21 (cited in note 33).
>247. Bartleman, Hoover, Paducah Sun at 1A (cited in note 250).
>248.
>249. Paducah Sun, Jul. 3, 1996, at 2A
>250. See, for example, the Mollen Commission Report at 15 (cited in note 163) ("Most
>serious police corruption today arises from the drug trade. . . [The] wide spectrum of
>drug-related corruption [ranges] from opportunistic thefts from street dealers, to
>carefully planned group assaults on drug locations, and long term partnerships with
>narcotics traffickers.")
>251. A former federal prosecutor says that in drug arrests "you almost always find cash.
>The problem has always been: How do you watch this process? It's a textbook scenario
>for corruption." See Gerard ONeill, Mitchell Zuckoff, Dick Lehr, "Corruption Probe
>Shakes Up Boston Police Detective Unit: The Case of the Disappearing Money,"
>Boston Globe, 2/10/96, at p. 1 and Metro/Region section p. 12 The comment pertained
>to a Boston police scandal, but similar corruption in drug law enforcement has been
>uncovered in numerous other cities. In New York, the Mollen Commission revealed
>widespread corruption in the 30th Precinct with more than 30 officers stealing drug
>money, and some selling the drugs they seized. It also found pervasive police perjury
>designed to cover up illegal arrests and searches in drug cases. Mollen Commission
>Report at 22-35. In Philadelphia, five officers in the 39th precinct were indicted and
>dozens of convictions overturned due to rampant criminal activity that included beating
>suspects, planting drugs, stealing drugs and money, selling drugs, falsifying official
>arrest reports to sanitize illegal arrests, and providing perjured testimony. According to
>The Philadephia Inquirer, the officers worked "with virtual impunity,...driven by the
>opportunity to steal money and drugs from street dealers and earn overtime pay for
>court appearances... Because those officers admitted framing countless drug suspects,
>42 people arrested since 1988 have had their cases dismissed. Hundreds of other
>convictions are being reviewed." Mark Bowden and Mark Fazlollah, "Police
>Corruption inquiry Widens: Up to 9 Officers in Elite Unit Implicated", Phila. Inquirer,
>8/13/95, p. A01. See also David Rudovsky, "Why It Was Hands Off On the Police",
>Philadelphia Inquirer, Aug. 8, 1995, p. A07 (regarding the 39th District, "it now
>appears that well over a thousand persons were either arrested without cause,
>subjected to illegal searches and seizures, had money stolen and/or were physically
>abused by the police"); Joseph D. McNamara, "Law Enforcement: Has the Drug War
>Created An Officer Liars' Club?", LA Times, 2/11/96 ("The message that politicians
>seem to be sending to the nation's police chiefs is that we understand police perjury is
>a part of the drug war.").
>252. Since failure to report their colleagues would make these officers complicit
>anyway, it is often easier to join in the illegalities. An unwilling officer may even be
>coerced into joining the others by threats that he will be implicated whether or not he
>engages in corruption. Mollen Commission Report, at 20 (cited in note 164) ("[C]orrupt
>officers were typically protected by the silence of their fellow officers, and often the
>willful blindness of supervisors.")
>253. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989).
>254. James Daniel Good, 510 U.S. at 502, citing Harmelin v. Michigan, 501 U.S. 957,
>978 n. 9. In Good, the Supreme Court required notice and a hearing before seizure of
>allegedly forfeitable real estate under 21 USC 881(a)(7)). No such preseizure hearing is
>required in the case of other kinds of property.
>255. See for example, James Daniel Good, 510 U.S. at 61 ("Individual freedom finds
>tangible expression in property rights. At stake in this and many other forfeiture cases
>are the security and privacy of the home and those who take shelter within it.").
>(Justice Kennedy writing for the Court, joined by Justices Blackman, Stevens, Souter
>and Ginsburg).
>256. See Section III.A.
>257. See Jan. 10/1994 Letter from to President Clinton from a coalition led by the
>ACLU seeking a national commission to review the policies and practices of all federal
>law enforcement agencies, and criticizing, inter alia, the "inappropriate and
>disproportionate use of forfeiture proceedings to obtain financing for law enforcement
>equipment and activities." Other signers included National Rifle Association, National
>Legal Aid and Defender Association, Second Amendment Foundation, National
>Association of Criminal Defense Lawyers. For a report on this coalition, see also
>Michael Hedges, Diverse Coalition Seeks Oversight of Federal Law Officers, Washington
>Times, Jan. 11, 1994, at A3.
>258. Justice Thomas cautions that forfeiture "improperly used . . . could become more
>like a roulette wheel employed to raise revenue from innocent but hapless owners
>whose property is unforeseeably misused, or a tool wielded to punish those who
>associate with criminals, than a component of a system of justice." Bennis v. Michigan,
>116 S.Ct. 994, 1003 (1996) (Thomas, J., concurring). Although Justice Thomas
>consistently votes to uphold the government in forfeiture cases, he has expressed
>concern with the breadth of modern forfeiture law, suggesting that it may be time to
>"reevaluate our generally deferential approach to legislative judgments in this area of
>civil forfeiture." United States v. James Daniel Good, 114 S. Ct. 492, 515-16 (Thomas,
>J., concurring). Justice Thomas argues that property rights, and particularly rights to
>real property, are threatened by the government's aggressive use of broad forfeiture
>statutes like U.S.C. 881 (a)(7), which he believes significantly differs in degree and in
>kind from its historical antecedents. He questions whether the fiction of guilty property
>can justify the "immense scope" of this statute. Id. at 81-82.
>259. The former Associate Director, David Smith, writes that "a less obvious reason for
>the large number of conveyances seized by law enforcement agencies is the fact that
>forfeited conveyances are often placed into government service. Forfeiture of
>conveyances is a cheap way to provide the cars, vessels and planes that law
>enforcement agencies need. However, there is evidence that law enforcement
>priorities are being distorted by the system. There is also the danger that agents may
>pursue forfeitures overzealously in these circumstances." Smith, Forfeiture, supra at
>note ---, at Sec. 3.03, p 3-12 (Release 16, in June 1997 ed.)(citing as one example
>United States v. One 1976 Buick Skylark, 453 F. Supp. 639, 643 (D. Colo. 1978)). As
>Smith also notes, drug sezirues have a more significant impact on a drug trafficker's
>cost of doing business than asset forfeitures "because large quantities of drugs have
>much greater cost to the owner than anything likely to be seized for forfeiture, although
>their value to the govt is zero. Accordingly, it would be counterproductive for DEA and
>other fed agencies to devote more resources to asset forfeitures at the expense of drug
>seizures." Id. at Sec. 1.02, at 1-25. See also United States v. That Certain Real Property
>Located at 632-636 Ninth Avenue, Calera, Alabama, 798 F. Supp. 1540 (N.C. Ala., 1992)
>("More and more courts are voicing frustration at what appears to be overreaching by
>the United States in the drug war, particularly in forfeiture cases where law
>enforcement agencies have a 'built-in' conflict of interest because they share in the
>product of the seizure.")
>260. 509 U.S. 602 (1993).
>261. Controlled substances, raw materials and instrumentalities, and containers,
>conveyances tied to a drug violation may be forfeited pursuant to 21 U.S.C. sec. 881(a),
>except that real estate may be forfeited only if it facilitated the commission of a drug
>crime punishable by imprisonment for more than one year. 21 U.S.C. sec. 881(a)(7).
>262. The Court refused to define forfeiture as purely remedial and non-punitive
>because there is no necessary correlation between the seized property and costs borne
>by the government or by society. Austin at 2812, citing United States v. Ward, 448 U.S.
>242, 253-254 (1980). See also United States v. 38 Whalers Cove, 954 F.2d 29, 37
>(1992)(to be solely remedial, a forfeiture cannot be disproportionately large, "placing
>full responsibility for the 'war on drugs' on the shoulders of every individual claimant").
>Even before Austin, many lower court judges had questioned the constitutionality of
>grossly disproportional forfeitures under the 8th amendment's prohibition on excessive
>fines and cruel and unusual punishments. See, e.g., Pratt and Peterson, 65 St. John's L.
>Rev. at 669 (cited in note 27) (arguing that "when an expensive automobile is forfeited
>on the strength of less than twenty-five grams of marijuana, one must swallow hard to
>maintain that the 'punishment' is proportionate to the 'crime.'", and citing similar
>concerns in United States v. Property at 4492 S. Livonia Road, 889 F.2d 1258, 1270 (2d
>Cir.1989).
>263. The Supreme Court will revisit the issue in 1998, having agreed to hear an appeal
>from a Ninth Circuit decision holding that forfeiture of $357,114 in cash at Los Angeles
>International Airport from a man trying to smuggle it to Syria, in violation of a law
>prohibiting the undeclared export of more that $10,000, was an excessive fine under
>the Eighth Amendment. United States v. Bajakajian, 117 S.Ct. 1841 (1997). Although
>Justice Scalia proposed an "instrumentality test" that would measure excessiveness
>solely by examining the property's nexus to the offense without reference to its value,
>Austin at 2815 (Scalia, J., concurring), the majority explicitly left the question open. Id.
>at 2812. Several lower courts have insisted that a comparison between the gravity of
>the offense and the value of the property (a "proportionality test") must figure in the
>Eighth Amendment determination as well. One test, enunciated by a Federal District
>Court, would apply a 3 factor test to determine whether the excessive fines clause is
>violated: "(i) the inherent gravity of the offense compared with the harshness of the
>penalty; (ii) whether the property was an integral part of the commission of the crime;
>and (iii) whether the criminal activity involving the defendant property was extensive in
>terms of time and/or spatial use." U.S. v. Real Property Located at 6625 Zumirez Drive,
>845 F. Supp. 725, 732 (1994). The court concludes,
>[T]he multi-factor test we establish "will have the added benefit of checking the
>government's potential for abusive use of the civil forfeiture statutes. The
>constitutional protection of the Excessive Fines Clause is especially important in the
>forfeiture context 'where the Government has a direct pecuniary interest in the
>outcome of the proceeding' [citations omitted]. Failure to strictly enforce the Excessive
>Fines Clause inevitably gives the government an incentive to investigate criminal
>activity in situations involving valuable property, regardless of its seriousness, but to
>ignore more serious criminal activity that does not provide financial gain for the
>government.
>For alternative Circuit Court tests, see United States v. 6380 Little Canyon Road, 59
>F.3rd 974, 982-85 (9 Cir., 1995); United States v. Chandler, 36 F.3d 358 (4 Cir., 1994);
>United States v. Milbrand, 58 F.3d 841 (2d Cir., 1995); United States v. Royal Route #1,
>Box 224, 14 F. 3d 864, 874 (3d Cir., 1994); United States v. 9638 Chicago Heights, 27
>F.3d 327 (8th Cir., 1994).
>264. Like all attorneys, prosecutors must not labor under actual or potential conflicts of
>interest. This restriction may be found not only in Constitutional due process
>requirements, but in professional responsibility requirements. See ABA Model Code of
>Professional Responsibility DR 5-105; EC 5-1 (lawyer's judgment should be free of
>"compromising influences and loyalties), EC 5-2 (lawyer should refuse client if
>reasonable probability that personal interests will affect adversely the services to be
>rendered); ABA Model Rules of Professional Conduct, Rule 1.7 Comment 6 ("The
>lawyers own interests should not be permitted to have adverse effect on representation
>of a client"); Rule 1.11, Comment 2 (government lawyers subject to Rule 1.7
>prohibition of conflicts). These or similar restrictions have been codified by the states
>to govern their attorneys, and additional state laws may mandate courts to disqualify
>prosecutors laboring under a conflict of interest, see, e.g., People v. Eubanks, 59 Cal.
>Rptr. 2d 200 (1996)(interpreting Cal. Penal Code sec. 1424 to require disqualification
>where conflict renders it unlikely defendant will receive fair treatment), or to dismiss
>indictments obtained by biased prosecutors, see e.g. People v. Superior Court (Greer), 19
>Cal. 3d 255, 263 n. 5 (1977).
>Federal prosecutors are governed by both state and federal rules of professional
>responsibility. The Model Code has been specifically applied to U.S. attorneys by
>Justice Department regulation. 28 CFR s. 45.735-1(b)(1986). Additionally, U. S.
>Attorneys are lawyers and as such are generally subject to the ethical rules of the state
>in which they practice, as many local federal court rules make clear. See, e.g., U.S.
>District Court for Massachusetts Local Rule 83.6(4); United States v. Klubock, 832 F. 2d
>649, 655 (1987). Moreover, conflicts may be criminally prosecuted under 18 U.S.C.
>Sec. 208(a)(prohibiting federal prosecutors from representing the government in any
>judicial proceeding in which they, their families, or their business associates have a
>financial interest, and punishing violations by a fine and up to five years imprisonment).
>In Young v. U.S. ex rel Vuitton, 481 U.S. 787 (1987), in which the Supreme Court
>reversed criminal contempt convictions because counsel for the beneficiary of the
>contempt order had been appointed to prosecute the contempt. The court found that
>regardless of whether there was actual prosecutorial impropriety, the conflict created
>"the potential for private interest to influence the discharge of public duty", id. at 805,
>and was so fundamental an error as to obviate any inquiry into prejudice. Id. at 809-10.
>The court distinguished the potential conflict in Marshall v. Jerrico as too remote and
>therefore speculative. Id. at 807. For other cases prohibiting prosecutorial conflicts,
>see Ganger v. Peyton, 379 F.2d 709 (4 Cir., 1967); State v. Imperiale, 773 F. Supp. 747,
>751-756 (D.N.J., 1991); People v. Zimmer, 51 N.Y.2d 390 (1980). For proposals to
>further regulate prosecutorial discretion, see A.B.A., Standards for Criminal Justice,
>The Prosecution Function, secs. 3-3.9(d), 3-1.3(a) and (f)(App. Draft 1971); ALI Model
>Code of Pre-Arraignment Procedure for Criminal Justice secs. 350.3(2)-(3) (1975);
>Kenneth Bresler, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal
>Convictions", 9 Geo.J.Leg.Ethics 537,542 (1996) (prosecutors "must note create
>individual incentives to seek convictions"); Abrahms, Internal Policy: Guiding the
>Exercise of Prosecutorial Discretion, 19 UCLA L. Rev. 1 (1971).
>265. Supreme Court dicta established outrageous government misconduct as a due
>process defense in United States v. Russell, 411 U.S. 423, 432 (1973) and Hampton v.
>United States, 425 U.S. 484, 490 (1976). But the doctrine has been only rarely invoked,
>and then primarily in entrapment situations where the government's conduct was
>deemed intolerable. (Unlike the entrapment defense, however, here the focus is purely
>on the governments conduct, and the defense is available even to a culpable
>defendant.) See, e.g., United States v. Batres-Santolino, 521 F. Supp. 744 (N.D. Cal.
>1981); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); State v. Lively (Wash. Sup.
>Ct. No. 60389-8, 8/29/96), 59 CrL 1521. In a particularly relevant opinion, the Ninth
>Circuit found that a crime choreographed by an informant crossed this line because the
>informant was paid based on the conviction rate, the amount of drugs involved and the
>value of assets seized; but it withdrew the opinion after further argument successfully
>challenged the existence of these financial incentives. United States v. Solorio, 37 F. 3d
>454 (1994), withdrawn and superceded by 53 F. 3d 341 (9th Cir. 1995). The courts
>initial reasoning, however, should apply to future cases that do present the kind of
>rewards assumed in its first opinion:
>[Such financial incentives create too great a risk evidence will be fabricated, and] it is
>extremely likely that innocent people will be prosecuted and convicted, and that
>informants will induce defendants to sell greater quantities of drugs than they are
>predisposed to sell....
>The danger is further exacerbated where the party with the financial incentive is the
>person orchestrating the crime...Complete control over the "crime" makes "sting
>operations" an efficient law enforcement technique. However, this same feature creates
>enormous potential for abuse. When, as here, "sting operations" are combined with
>contingency fees designed to maximize the conviction rate and the amount of drugs, it
>is likely that this potential will become actual. At a minimum, the Due Process Clause
>protects against the conviction of individuals on the basis of evidence that has such a
>high risk of being false.
>In some cases, the reverse stings favored by asset-hungry police agencies may violate
>the outrageous conduct doctrine. A federal district court so found in United States v.
>Santana, 808 F. Supp. 77 (D. Mass., 1992), where the government delivered 13.3
>grams of 92% pure heroin to a suspect to gain his confidence, lost track of the drugs,
>and thereby sent 2,500 street doses into commerce. The Court of Appeals reversed
>the District Court's dismissal, however, persuaded that the tactic was necessary and
>that the defendant had suffered no prejudice. United States v. Santana, 6 F.3d 1, 8 (lst
>Cir. 1993); see also Hampton, supra (not outrageous conduct where defendant
>convicted of selling heroin supplied by government agents). Nevertheless, the opinion
>did reaffirm that sufficiently outrageous governmental conduct does mandate dismissal
>on due process grounds, and may warrant dismissal under the court's supervisory
>powers for the sole purpose of deterring government misconduct even in the absence
>of constitutional harm to a defendant. Id. at 9, 11-12, citing U.S. v. Hasting, 461 U.S.
>499, 505 (1983). In the First Circuit and most others, the "outrageous misconduct
>doctrine, no matter how cramped its confines, is not entirely mummified," id. at 12,
>although it has been rejected by two circuits. See U.S. v. Tucker, 28 F.3d 1420 (6th Cir.
>1994); U.S. v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995).
>While the outrageous conduct doctrine has been asserted as a defense to government
>entrapment efforts, the defense is much broader, at least in theory. The due process
>prohibition applies to prevent conviction brought about by any "methods that offend 'a
>sense of justice." Rochin v. California, 342 U.S. 165, 173 (1952). There, pumping the
>stomach of a defendant to obtain swallowed capsules was found to violate the due
>process clause. Rochin and subsequent cases have been identified as a separate line of
>authority prohibiting physical abuse of the defendant as "outrageous conduct" in
>violation of due process. See U.S. v. Kelly, 707 F2d 1460, 1476 n. 13 (D.C. Cir., 1983);
>United States v. Bogart, 783 F. 2d 1428, 1438 (9 Cir., 1986).
>266. This is not a prediction, but speculation on the Supreme Courts ultimate
>destination in developing new federalism doctrines. The Court has recently effected a
>sea change in the scope of federal power. See United States v. Lopez, 115 S. Ct. 1624
>(1995)(striking down the Gun Free School Zones Act as beyond Congress Commerce
>Clause power); Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996)(holding that
>the previously established Congressional power to abrogate state immunity is limited
>to implementation of the 14th amendment and may not be invoked to implement its
>commerce power under Art I, sec. 8); New York v. United States, 505 U.S. 144
>(1992)(overturning a law that required the states to either enact radioactive waste
>legislation of take title to the waste); and Printz v. United States, -- U.S. --- (June 27,
>1997)(striking down a portion of the Brady Bill on grounds that it conscripted state
>officials to execute federal law). However, nothing in those cases would bar the kind of
>federal inducements that exist in the adoption law: unlike the Brady Bill, adoption does
>not require the states to provide services or spend money, but rather transfers money
>to those local agencies who wish to receive it. But such a scheme does profoundly alter
>the balance of federal and state powers, and it remains to be seen whether the Supreme
>Court might ultimately prove responsive to an argument that the federal government
>cannot constitutionally alienate local agencies from their state government in this way.
>For one opinion raising federalism concerns about federal adoptions, see Scarabin v.
>Drug Enforcement Administration, 966 F. 2d 989 (5 Cir. 1992).
>267. On June 20, 1997, the House Judiciary Committee passed Congressman Hydes
>proposed Civil Asset Forfeiture Reform Act, H.R. 1965, by a vote of 26 - 1.
>268. See the proposed Civil Asset Forfeiture Reform Act, H.R. 1965 in the 105th
>Congress, and the Report of the House Judiciary Committee, Rept. 105-358 Part I
>(October 30, 1997). As passed by the House Judiciary Committee, this act would
>institute numerous procedural changes generally providing more protection to property
>owners, including a requirement that the government shoulder a burden of proving its
>case by a preponderance of the evidence, the provision of a court-appointed attorney
>for indigent claimants in some cases, the elimination of the bond required to challenge a
>seizure, compensation to the owner if the government negligently damages the seized
>property, an extension of the deadline for challenging a forfeiture to 30 days,
>requirement of notice to all identified interested parties within sixty days, and
>clarification of the federal "innocent owner" defense to include unknowing or
>unconsenting owners.
>269. The ABA in 1996 urged Congress to rewrite forfeiture laws to make them more
>just and equitable, and "restore public confidence that the civil forfeiture laws can and
>will be fairly deployed to fight crime, and not merely to further fiscal interests."
>Fairness in Civil Forfeiture, ABA Journal, Nov. 1996, p. 102, quoting Terrance G.
>Reed, chair of the RICO, Forfeiture and Civil Remedies Committee of the ABA
>Criminal Justice Section, testifying before the House Judiciary Committee in July,
>1996 concerning the ABA's Statement of Principles on the revision of the Federal
>Asset Forfeiture Laws. Representatives of all of the other organizations named above
>testified or provided submissions to the House Judiciary Committee supporting some
>or all of the proposed reforms on June 11, 1997. See Report of the House Judiciary
>Committee, HR Rep. No. 105-358 at 36 (cited in note 272). However, the Justice
>Department's support of the Hyde Bill may hinge on other provisions which expand the
>reach of the forfeiture law, including secs. 21 (forfeiture of proceeds traceable to
>facilitating property in drug crimes), 22 (forfeiture of proceeds of certain foreign
>crimes), 32 (forfeiture for additional money laundering offenses), 37 (forfeiture of
>instrumentalities of terrorism and telemarketing fraud), 38 (frofeiture of criminal
>proceeds transported in interstate commerce, and 40 (forfeiture of counterfeit
>paraphernalia). This in turn has driven away supporters of earlier versions of the Hyde
>Bill, including the ACLU. See Press Release of the ACLU, July 22, 1997.
>270. Congressman John Conyers did include asset distribution reform in the
>unsuccessful bill he introduced in 1993, H.R. 3347 (The Asset Forfeiture Justice Act).
>The Asset Forfeiture Justice Act would have redirected 50% of the proceeds in the
>asset forfeiture program to community based crime control efforts, drug education and
>treatment programs, id. sec. 15, and assured forfeitures transferred to state or local
>agencies were disposed of according to the states law, id. secs. 14, 17. But these
>proposals were cast aside, and Congressman Hyde did not include it in his reform bill
>because he believed such a bill would have no chance of getting through Congress.
>271. Hyde, Forfeiting our Property Rights 68 (Cato Institute, 1995). The Hyde Bill's
>failure to address asset distribution more directly prompted the National Association of
>Criminal Defense Lawyers to submit a written statement to the House Judiciary
>Committee, urging that it not "ignore the conflicts of interest and policy problems
>which arise when law enforcement and prosecutorial agencies reap financial bounty
>from the forfeiture decisions they make. Decisions regarding whose property to seize,
>and how to deal with citizens whose property has been seized is too often dictated by
>the profit the agencies stand to realize from the seizures." U.S. House Committee on the
>Judiciary regarding H.R. 1916 at 28.(July 22, 1996) (written Statement of E.E. Edwards,
>III, David B. Smith, Richard J. Troberman (Co-Chairs of the National Association of
>Criminal Defense Lawyers, Asset Forfeiture Abuse Task Force).
>272. This 1988 amendment included a provision stating, "(e)(3) The Attorney General
>shall assure that any property [forfeited assets] transferred to a State or local law
>enforcement agency . . . (B) is not so transferred to circumvent any requirement of
>State law that prohibits forfeiture or limits use or disposition of property forfeited to
>State or local agencies." 21 U.S.C. Sec. 881(e)(3), Pub. L. 100-690, sec. 6077(a)(1988
>amendment).
>273. See 1989 amendment to 21 U.S.C. Sec. 881 (e)(3)(B); Pub. L. 101-189, sec.
>1215(a).
>274. The sponsor was Congressman Bill Hughes, the original author of the federal
>adoption provision who had come to regret its impact. See Hyde, Forfeiting Our
>Property Rights, at 68 (cited in note 275), quoting Hughes.
>275. Police witnesses testified to dire consequences if the Byrne program were not
>refunded, including "anarchy" in the cities, police inability to enforce of drug laws, and
>the general deterioration in the quality of American life. See Appendixes to Hearings on
>the Proposed Elimination of the Byrne Grant Program, ---- (Mar. 2, 1994).
>276. Testimony of N. J. Attorney General Deborah Poritz to House
>Appropriations/Commerce, Justice, State, the Judiciary, and related Agencies in favor
>of restoring Byrne grant money, 5/3/1994 (stating 400 police officials would lose their
>jobs if grants were eliminated). An additional factor, distressing to rural and suburban
>police forces, was fear that unlike Byrne grants, the funding for new police officers
>would be allocated based on population density. This turned out not to be the case.
>These new police positions were designed to be distributed "to a wide range of
>communities, including those in which violence was not a serious problem, leaving
>insufficient resources for the communities that were in greatest need." Philip Heymann
>and Jody Heymann, The Fate of Public Debate in the United States, 33 Harv. J. on Legis.
>517 (1966)
>277. According to Richard Troberman, a member of the National Association of
>Criminal Defense Lawyers involved in discussions with the Justice Department and
>Congress over forfeiture reform, negotiations between reformers and the Justice
>Department foundered over this issue, the one procedural reform that would have
>directly affected the forfeiture income stream. Interview with Richard Troberman by
>authors, conducted April 1, 1997.
>278. Hyde, Forfeiting Our Property Rights at 66-67 (cited in note 275) (advising that
>forfeiture proceeds be deposited in the general fund, and explaining why he has not
>proposed such a measure).
>279. The unsuccessful Conyers bill, HR. 3347, 103d Cong., 1st sess., included this
>option, and state officials have urged this reform. See, e.g., Attorney General [of
>Mississipi] Mike Moore and Jim Hood, "The Challenge to States Posed by Federal
>Adoptive Drug Forfeitures," National Association of Attorneys General, June/July
>1992, pp. 1, 3. We have seen that two previous attempts failed. See supra note ---.
>While failing to include it in his reform bill, Congressman Hyde suggests that
>procedural changes making federal forfeiture more difficult would encourage local and
>state police to use their own forfeiture laws. Hyde, Forfeiting Our Property Rights at
>66-68 (cited in note 275).
>280. All states except Iowa and Vermont have forfeiture laws. Some allow forfeiture of
>assets only after a criminal conviction. See, e.g., Missouri's forfeiture statute,
>Mo.Ann.Stat. ss513.600-645 (Vernon supp. 1994). Some allow forfeiture of very limited
>kinds of assets or under very limited circumstances. See, e.g., Cal. Health & Safety Sec.
>11469. (mandating specific guidelines for police and prosecutors in order to ensure that
>law enforcement is the principal objective of forfeiture). Some require forfeited assets
>to be deposited in the general treasury. See, e.g., Tenn. Code Ann. Sec. 53-11-451,
>53-11-452 (though vehicles go to the police); N.C. Gen. Stat. Sec. 90-112, N.C.
>Constitution Art. 9 Sec. 7; N.M. Stat. Ann. Sec. 30-31-35; 22-8-32. Others specify a
>particular division among branches of law enforcement and some non-law enforcement
>entities. See e.g., N.Y. Civil Prac. L. & R. Sec. 1349 (40% substance abuse service
>fund); Minn. Stat. Sec. 609.5315 (70% to police, 20% to prosecutor, 10% to general
>fund); Mass. Gen. Law Ch. 94C Sec. 47(d)(50% to prosecutor and 50% to police; prior
>to 1984 amendment excess after expenses was deposited in the general treasury).
>281. National Conference of Commissioners on Uniform State Laws, Uniform
>Controlled Substances Act (1994) with Prefatory Note and Comments, at 4-5. Section
>522(h) of the Uniform Substances Act states in pertinent part, "Money remaining after
>the satisfaction of the requirements of subsections (e) through (g) must be deposited in
>the [general fund] of the state." (brackets in original). The model law brackets the
>words "general fund" in recognition of the fact that some state constitutional provisions
>require that collections be shared with specified funds, such as an education fund.
>Subsections (e) through (g) give general directions for sale and/or disposal of property,
>and allow the transfer of a forfeiture action to a federal agency or agency of another
>state when that agency has contributed to the forfeiture.
>282. National Conference of Commissioners on Uniform State Laws, Proceedings in
>Committee of the Whole, Uniform Controlled Substances Act, Article V, Civil
>Forfeiture, at 114 (Aug. 2-9, 1991) (Commissioner Harold E. Read, Jr.).
>283. Id. at 114 (Commissioner Bryce A. Baggett). At a later meeting, Baggett told the
>other participants that "this is the most important decision you'll make. The money is
>corrupting. . .Prosecutorial decisions are made on the basis of how much we can grab.",
>National Conference, Proceedings in Committee of the Whole, 1993 Proceedings, at
>131-32. Other commissioners were equally concerned with the asset allocation issue.
>See statement of Commissioner John H. Langbein (Connecticut), 1991 Proceedings at
>117 ("It is deeply important that we recognize the venal conflict of interest that exists
>when law enforcement officers can basically line their pockets, not so much personally,
>but in terms of their appropriations, their perks, those Cadillacs . . . When they are able
>to control their own appropriations by making individual arrests and so forth of citizens,
>you are in the worst kind of conflict of interest."); statement of Commissioner Michael
>Cramer (Maryland), 1993 Proceedings, at 115 ("I think this is carrying privatization of
>public works a little too far. It creates an overzealous attitude which is incompatible
>with everything in the history of our law, or at least the way I perceive it to be.)."
>284. 1993 Proceedings at 130-131 (Commissioner Bryce A. Baggett) (cited in note
>287). The prosecutors joined the President's Commission on Model State Drug Laws
>and published their recommendations for reform as the Commission Forfeiture Reform
>Act (C.F.R.A.). The C.F.R.A. "continues to allocate forfeiture revenues to law
>enforcement activities, with the exception of an optional diversion of 10 percent of
>revenues to drug treatment programs...[It] relies upon prosecutorial codes of ethics
>and conduct to prevent abusive forfeiture practices." Raymond Pepe, "Alternative
>Proposals for the Reform of State Legislation Dealing with Forfeitures for Drug
>Offenses," 21 Wm. Mitchell L.Rev. 197, 213-14 (1995).
>285. 1991 Proceedings at 118 (Commissioner Donald E. Mielke) (cited in note 287).
>286. Many judges have noted how constitutional guarantees may be no match for the
>frenetic imperatives of the drug war. See, e.g., Juan R. Torruella, "The 'War on Drugs':
>One Judge's Attempt at a Rational Discussion," 14 Yale J. on Reg. 195, 256-57
>(1997)(concluding that "citizens have been willing to give up their collective civil rights
>in the name of, and in exchange for, an illusory achievement of 'law and order'...when it
>comes to those accused of drug violations"); Judge Patricia M. Wald (Chief Justice of
>the D.C. Court of Appeals), A Report From the Front in the War on Drugs, 7 Ga. State
>U. L. Rev. 1 (1990)("without vigilance, a fair, individualized system of criminal and civil
>justice could be an early [drug] war casualty").
>287. See text accompanying notes 172-174 (detailing the growing prison population of
>non-violent drug offenders). Speaker Newt Gingrich has gone so far as to craft the Drug
>Importer Death Penalty Act of 1997, HR 41 in the 105th Congress, which would
>execute recidivist importers of any illicit drug where the quantities totalled 100 times
>the usual dosage amounts on at least two occasions.
>288. For example, William Bennett has proposed putting the military in charge of the
>drug interception activities of the DEA, the FBI, and other agencies, and Rep. Bill
>McCollum, chair of the Crime Subcommittee of the House Judiciary Committee,
>recently demanded "a massive deployment of Navy, Air Force, Coast Guard, and
>Customs ships, planes, radar, night vision surveillance equipment and the personnel to
>man them for an around-the-clock operation designed to totally disrupt the drug
>trafficking through the eastern Carribean." See Robert Dreyfuss, Hawks and Doves,
>Rolling Stone, 8/7/97, at 44-45, and Bill McCollum, A New Crisis in Drug Use, 142
>Cong. Rec. H11361-03. In the 1996 campaign, candidate Robert Dole advocated using
>"our military power, particularly our technological capabilities, to fight this [anti-drug]
>battle, to involve our intelligence agencies, including the CIA, in this effort." The
>Progressive, Still on Drugs (editorial), Oct., 1996, vol. 60 no. 10, at 9) See also A.
>Zitner, Dole Vows Guard Role in Drug War, Boston Globe, Sep. 2, 1996; J. Shenk, The
>Phony Drug War, The Nation, Sep. 23, 1996, at 11. On the Democratic side, the
>continuing militarization of drug law enforcement is symbolized by President Clinton's
>appointment of a retired Gulf War general, Barry McCaffrey as "drug czar," heading
>the Office of National Drug Control Policy. McCaffrey in turn has increased the staff
>positions several-fold and filled many of them with active-duty military officers.
>Dreyfuss, supra, at 42.
>The Posse Comitatus Act, 18 U.S.C. Sec. 1385 (1988) prohibits direct military
>participation in purely domestic law enforcement operations, but has been amended to
>allow the military to gather information, give advice, lend equipment and deploy
>personnel at the request of local law enforcement officials with jurisdiction over drug or
>immigration offenses. Department of Defense Authorization Act of 1982, Publ L. No.
>97-86, 95 Stat. 1114 (1981) (codified at 10 U.S.C. 371-385 (1982). The proposal to
>further militarize the drug war threatens additional and unjustifiable abuses to life and
>liberty, as was recently illustrated by the shooting death of teenager Esequiel
>Hernandez Jr. by marines on a drug surveillance mission in Redford, Texas. See Sam
>Verhovek, "In Marine's Killing of Teenager, Town Mourns and Wonders Why," New
>York Times, June 29, 1997, pp. 1, 18 ("[C]ritics . . . say the death of Mr. Hernandez,
>who had no criminal record and is not described by anyone as any kind of suspect in the
>drug trade, is a chilling example of the misunderstandings and the tragedies that they
>say will inevitably occur with the militarization of the border or any other patch of
>American soil.")
>289. Murray Weiss, Rudy to seal deal for NYPD's Dominican drug outpost, NY Post 2
>Nov. 18, 1996, (reporting that "drug-fighting NYPD cops . . [will] make the streets
>safer for Dominicans who live in the Dominican Republic and for those nationals who
>live in New York City...").
>290. See Sherry Dorsey, 17 Arrested on Drug Charges in New Hampshire, Boston
>Globe, June 22, 1995 at 23 (reporting Operation Streetsweeper in New Hampshire, a
>June, 1995 multijurisdictional task force operation deploying 150 officers to arrest 17
>low level drug sellers and addicts and seize one gun). Alexander Cockburn notes than
>when the war on drugs began in the late 1960's there were only two federal agencies
>enforcing the drug laws. He lists 54 today (including the DEA, NSA, IRS, DIA, ATF,
>State Department, Customs Coast Guard, Army, Navy, Air Force, and Marines) with a
>federal budget of $13 billion, with more tha $800 million going to the DEA. The Nation,
>Nov. 15 1993 at 3. The anti-drug opertions executed by these agencies include, inter
>alia, wiretaps and airspace surveillance by 3,700 National Guard employees, see Shenk,
>supra note ---; coastline interdiction by such agencies as the DEAs National Narcotics
>Border Interdiction System (NNBIS), the Coast Guard, and the Navy, including the
>firing on drug smuggling ships in international waters; NASA satellite surveillance;
>Treasury Dept. tracing of money laundering operations; CIA intelligence gathering
>about foreign drug sources; and State Department pressure on foreign governments to
>eradicate crops. Wisotsky, 38 Hastings L.J. at 892-93 (cited in note 161).
The Front Line
>>From: Ian Goddard <i...@intr.net>
>>Subject: Marijuana MURDER !
>>Date: Sun, 23 Jul 1995 18:27:24 -0400
>>(please repost)
>> DODGE COUNTY DEPUTIES DOWN DOPER
>>On April 28, Scott Bryant, a twenty nine year old Beaver Dam, Wisconsin
>>resident, was living peacefully in his home when Dodge County Sheriff's
>>deputies suddenly smashed their way in and shot Scott to death on the
>>spot. Scott was unarmed and no guns were found. They did, however, find
>>what they were looking for: three grams of cannabis flowers and leaves.
>>Scott's neighbor, Ken Pearson, told reporters "They [the officers]
>>rushed in the door but they didn't holler anything. As soon as they
>>kicked the door in, we heard the shot." Scott's seven year old son
>>watched his father die as they waited 35 minutes for the ambulance.
>>Just another example that drugs cause violence in those who do NOT use
>>them toward those who do use them. So should we outlaw non-drug use??
>>(fact source: NORML's Active Resistance. Vol 3, no. 1, Spring '95)
>>(PLEASE RE-POST)
>>-- Ian Goddard <igod...@cap.gwu.edu>
The Front Line
>>From: dark...@bronze.lcs.mit.edu (Arian Wolverton)
>>Newsgroups: alt.politics.clinton,alt.politics.libertarian,talk.politics.misc,alt.activism,alt.drugs,ne.politics
>>Subject: The Raping Of America
>>Date: 29 Aug 1994 23:00:56 -0400
>>Message-ID: <33u7d8$h...@bronze.lcs.mit.edu>
>>Following Are Several Articles From Around The Country. These Articles Are All
>>Stories Of Botched Drug Raids And Show How UnConstitutional The War On Drugs
>>Is. If It Can Happen To Any Of These People, It Surely Can Happen To You.
>>Please Help End The War On Drugs.
>>
>>Minister dies as cops raid wrong apartment
>>
>>By Joseph Mallia and Maggie Mulvihill
>>
>>A 75-year-old retired minister died of a heart attack last night after strug-
>>gling with 13 heavily armed Boston Police officers who stormed the wrong Dor-
>>chester apartment in a botched drug raid.
>>
>>The Rev. Accelyne Williams struggled briefly when the raiding officers - some
>>of them masked and carrying shotguns - subdued and handcuffed him, then he
>>collapsed, police said.
>>
>>Williams, a retired Methodist minister, was pronounced dead of cardiac arrest
>>at 4 p.m yesterday at Carney Hospital said hospital spokesman William
>>Henderson.
>>
>>"There is a likelihood or possibility that we did hit the wrong apartment,"
>>said Police Commissioner Paul Evans at a news conference last night.
>>
>>"If that's the case, then there will be an apology."
>>
>>Evans said an investigation into the "facts and circumstances surrounding the
>>execution of a search warrant" was under way. Said one police source: "It's a
>>terrible thing that an innocent victim died. Everyone feels terrible. He was
>>totally legitimate."
>>
>>Said Verna Green, who was visiting her sister in another apartment in the
>>building: "They scared him to death."
>>
>>Police raided the second floor apartment at 118 Whitfield St. based on inform-
>>ation from a confidential informant, the source said. No shots were fired.
>>
>>"Everything was done right, except it was the wrong apartment," the source
>>said.
>>
>>"When you're going in, you're expecting heavily armed people. (The entry team
>>'s) job is to put everyone down, then withdraw. Then the other unit goes in."
>>
>>According to the source, police were grilling the informant last night, and
>>are still interested "in an apartment in that building - just not the Williams
>>apartment."
>>
>>Mayor Thomas M. Menino expressed his sympathy to the victim's family, and
>>asked Evans for a full report, said Mayoral spokeswoman Jacqueline Goddard.
>>
>>Evans said the drug officers, accompanied by the police entry team, went to
>>the apartment where Williams and his wife, Mary, lived and forced their way in
>>at 3:15 p.m., Evans said.
>>
>>"With the assistance of the department's entry team, they did make a forced
>>entry. A struggle ensued, and the occupant was handcuffed and collapsed,"
>>Evans said.
>>
>>Evans said it wasn't clear whether police officers knocked on Williams' door
>>or identified themselves before ramming down the door. Some of the 13 officers
>>wore clothing that clearly identified them as Boston Police officers, Evans
>>said.
>>
>>Police found no drugs or weapons in the apartment, he said.
>>
>>Two neighbors mourned Williams as they watched a detective lead the retired
>>minister's wife to a police car, hours after the bungled raid. The wife had
>>been away from the apartment shopping when the raid took place, a police
>>source said.
>>
>>"Her husband is dead! He's dead!" said Callie Davis, 50, who lives in a fourth
>>floor apartment with her husband and grandchildren.
>>
>>Williams and his wife had lived alone there for at last the past three years,
>>she said.
>>
>>"I called her 'Mom' and him 'Pop.' I'm going to miss him," Davis said.
>>
>>"He's probably dead because he was so scared. He probably thought someone was
>>trying to kill him," Davis said.
>>
>>Williams on Wednesday brought her three cans of evaporated milk - he knew she
>>loved to drink it - and some pancake mix, Davis said. "He was like that. He
>>always gave me things."
>>
>>"I was in my house and I heard all this boom, boom, boom! It happened so
>>quickly" said Verna Green. "This man died because of some dumb thing. The
>>police should pay for this thing. They should pay big."
>>
>>Green said she saw police carrying a battering ram and shotguns, and she later
>>saw officers performing CPR on Williams, trying to revive him.
>>
>>Williams' upstairs neighbor, Demetra Stinson, said he was a quiet man who had
>>trouble climbing stairs. "He could barely move. He came up the stairs really
>>slowly," Stinson said.
>>
>>A police source said the result was clearly the result of "bad information."
>>
>>"The question now is whether the officer who prepared the warrant put down the
>>wrong information, or did the informant dupe the unit," said the source.
>>
>>The head of the drug unit that conducted the raid was reported to be Lt. Det.
>>Stanley Philpin, a seasoned veteran.
>>
>>"I'm surprised if it was Stanley's unit," said one source. "He is one of the
>>best, if not the best - a very capable guy.
>>
>>"The drug detective who was with the entry team was so sure of the apartment
>>that he literally pointed at the door and said, 'This is it.' Then they burst
>>right in."
>>
>>"You'd be surprised at how easily this can happen," said the source. "An info-
>>rmant can tell you it is apartment on the left at the top of the stairs and
>>there could be two apartments on the left at the top of the stairs," the
>>source said.
>>
>>"Or people could rent rooms within an apartment that the informant doesn't
>>know about. You are supposed to verify it, and I'm not making excuses, but
>>mistakes can be made."
>>
>>On "hits" or raids, members of the entry team generally wear black knit masks
>>that are designed to "psychologically freeze people where they stand."
>>
>>The Williams' second-floor apartment building, at 116-118 Whitfield St., has
>>eight apartments. The other three apartments on the Williams' side of the
>>building are occupied by families with children, and the other second-floor
>>apartment is also occupied by a family with children.
>>
>>Seek Out Guns In BHA
>>
>>For someone who claims to know the people and problems of public housing,
>>Boston Housing Authority Administrator David Cortiella seems terribly out of
>>touch. Cortiella is fighting a plan embraced by President Clinton as well as
>>federal housing officials, that would allow searches of apartments for drugs,
>>guns and other contraband. He calls the plan "martial law" and a violation of
>>constitutional rights. Let's hope that Cortiella is simply misinformed when
>>he uses rhetoric like that. The constitution bans unreasonable searches; we
>>think there's plenty of reason to introduce a kind of martial law in public
>>housing. It's not as if police SWAT teams will routinely slam through the
>>doors. The federal plan simply asks tenants to agree in their leases to allow
>>searches without warrants, as a condition of their tenancy. "Too much of our
>>public housing is in shambles," U.S. Housing and Urban Development Secretary
>>Henry Cisneros said. "We must change course." The HUD secretary quoted a
>>Chicago public housing tenant who, fed up with violence there, pleaded, "Just
>>make it stop." Cortiella should listen to his own tenants, who live with gun-
>>shots and police sirens as a matter of routine. Tenants here too will tell
>>him, "Just make it stop." In his two-year, $60 billion Housing Choice and
>>Community Investment Act of 1994, Cisneros has requested more money for commu-
>>nity policing, youth recreation and other anti-crime efforts in public housing
>>developments. But the warrantless search plan is by far the most direct and
>>effective way to rid developments of the criminal activities that destroy the
>>quality of lives for those that live there. It is dramatic to be sure, but no
>>more dramatic than violent crime in America, where a child dies of gunshot
>>wounds every two hours. Cortiella is starting important initiatives to improve
>>life in the projects. He says he wants to evict tenants when drugs are found
>>in their apartments. But he's not willing to take the tough steps necessary
>>to find those drugs in the first place. Bold leadership is needed to make
>>public housing safe, and in Boston, the leadership is timid.
>>NO CONSPIRACY?
>>
>>The Justice Department has confirmed that Brett Kimberlin was unfairly silenc-
>>ed during the 1988 presidential election. Kimberlin, who claims he was Dan
>>Quayle's former pot dealer, was placed in solitary confinement by former
>>prison director J. Michael Quinlan after scheduling a press conference to tell
>>his story. Richard J. Hankinson, the Justice Department's inspector general,
>>said in a report that although Kimberlin "was treated differently and held to
>>a stricter standard of conduct" there was no "conspiracy to silence" him.
>> - New York Post
>> September 9, 1993.
>>
>>OFFICER, RETIREE KILLED IN BOGUS RAID
>>
>>When Manuel Medina Ramirez, a 63-year-old retired golf-course groundskeeper,
>>was routed from his slumber at 2 AM by armed men breaking down the door of his
>>modest Stockton, CA. home, he instinctively reached for his bedside pistol.
>>Shooting into the darkness, he brought one of the men down; the others return-
>>ed fire, and Ramirez was shot dead in front of his son and daughter, who had
>>also been awakened. The armed men turned out to be a Stockton police antidrug
>>team who had obtained a warrant for the house after a friend of the Ramirez
>>family was found with marijuana in his car and gave the police the Ramirez
>>address as his own. "He died not knowing they were police officers," said
>>Maria Ramirez, the victim's 23-year-old daughter. She said that her father had
>>allowed the friend to use his address to get a driver's license. The officers
>>claim they had identified themselves, but Maria says her father spoke poor
>>English and couldn't understand them. No drugs were found in the house. "These
>>were very quiet people," said a neighbor. "I never saw anything going on that
>>could indicate drugs at all."
>> - Sacramento Bee
>> January 26, 1993.
>>
>>DEA Does It Again
>>
>>A Colorado woman was hospitalized after eight DEA agents forced open her door,
>>cursed her, and beat her to the ground - before realizing they were at the
>>wrong house. Daniel Thomas, the man they were really after, was later charged
>>with amphetamine manufacture. The Jefferson County DA has not commented on
>>whether charges will be brought against the agents. In a letter to the DA,
>>Wheat Ridge Mayor Ray Winger wrote that "drug manufacturers must be controlled
>>but not by people who cannot even get the address for the raid correct."
>> - Denver Post
>> July 16, 1993.
>>
>>AKRON DRUG SQUAD BUSTS DOWN WRONG DOOR
>>
>>A 32-year-old mom and her three young kids were terrorized when a gang of
>>black-clad men knocked down their front door and rushed into their apartment.
>>Only when the family was lying on the floor at gunpoint did the mom, indentif-
>>ied only as Joyce, recognize the intruders as Akron police officers. "I never
>>heard them indentify themselves," Joyce says. "All I saw were black uniforms,
>>helmets and guns." The officers from the Akron Police Department Street Narco-
>>tic Uniform Detail shortly realized that the address on the warrant was incor-
>>rect. "It didn't look like any drug house," says unit leader Lt. Harold Craig.
>> - Akron Beacon Journal
>> March 23, 1993.
>>
>>CALIFORNIA COUPLE SUES IN BOTCHED RAID
>>
>>Michelle and Tony Jones of Poway, CA. have filed a $10 million suit against
>>the DEA and Customs Department after they were detained and falsely accused
>>of drug dealing. The couple were fingered by Ronnie B. Edmonds, the same info-
>>rmant whose bad tips had previously led to the botched drug raid which result-
>>ed in the shooting of an innocent San Diego business executive, Donald
>>Carlson. Carlson, who was critically wounded, has his own $20 million lawsuit
>>pending. Edmonds is wanted on 25 counts of making false statements to drug
>>agents.
>> - San Diego Union-Tribune
>> March 5, 1993
>>
>>OREGON COUPLE WINS CASH SETTLEMENT FOR BOTCHED RAID
>>
>>Jose and Esperanza Navarro won a $100,000 settlement in their suit against
>>city and county authorities in Medford, OR. for a wrongful raid on their home.
>>Under the settlement, police deny any wrongdoing in their mistaken raid on
>>the Navarro residence. An informant told the police that a drug dealer lived
>>"in the second house on the right," according to court documents. He didn't
>>count a house on the corner, and police busted the wrong house.
>> - Seattle Times
>> December 12, 1993.
>>
>>New Drug War Nerve Center Unveiled
>>
>>The $50 million National Drug Intelligence Center, a new federal facility
>>administrated by its own new agency, was opened in rural Pennsylvania. While
>>Attorney General Janet Reno says its role is to coordinate intelligence from
>>rival federal agencies, critics say the center is a "boondoggle" with no
>>clear mission and a "pork barrel" for local Democrat Representative John
>>Murtha. Chair Of The House Defense Appropriation Subcommittee, Murtha has an
>>important role in setting the $263 billion Pentagon budget - and deciding
>>where it will be spent. A recent Congressional audit found the drug intellig-
>>ence network rife with "unnecessary overlap and duplication." Four of the 19
>>drug intelligence centers monitor the same air traffic over Mexico, and three
>>monitor the same parts of Central America. The Pennsylvania facility, approved
>>by the Bush White House in 1990, is almost identical to the DEA nerve-center
>>in El Paso. Murtha, then a member of the House Ethics Committee, was secretly
>>videotaped by the FBI agents saying, "It might be that I would change my mind
>>one day," as he turned down a bribe from undercover agents in the 1980 Abscam
>>sting.
>> - New York Times
>> November 17, 1993.
>>
>>Cops Bust Mayor
>>
>>A police SWAT team in Venice, MO. broke down the back door and crashed through
>>the window of the home of Mayor Tyrone Echols in a fumbled crack raid. Police
>>claimed that the goof resulted from a wrong address on the search warrant, but
>>the furious Mayor Echols, a black man, says the cops were lucky he was not
>>home at the time. "I probably would've taken my pistol and shot through the
>>door." Noting that the incident took place just as contract negotiations
>>between police and the city were starting, Echols says, "Don't think I haven't
>>considered the possibilities. I'm no fool."
>> - St. Louis Post-Dispatch
>> June 5, 1992.
>>
>>A camera team from the TV show Cops recorded a police team in King County, WA.
>>as, guns drawn, they burst into a private home, rousting a sleeping couple and
>>their children from their slumber, slipped handcuffs on the half-naked woman
>>and finally realized they were in the wrong house. "They pulled me out of bed
>>and put a gun on me," complained victim Theresa Glover. "Here I am with my
>>butt showing, and I see the camera." Cops decided not to air the fumbled
>>crack-bust footage, to which the grateful commander of the local precinct,
>>Maj. Larry Mayes, says, "How much more embarassing can you get?" But this was
>>not the precinct's first such foible - last year, officers mistakenly charged
>>into the home of another local resident, Terry Krussel. In both cases, police
>>had written the wrong address on the search warrant.
>> - Associated Press
>> May 25, 1992.
>>
>>Feds Ransack Tulsa Home
>>
>>Johnnie Lawmaster returned home last December 16 to find that his front and
>>back doors had been broken down with a battering ram, and his personal papers,
>>legally-registered guns and ammo strewn all over the floor. Furniture was
>>broken and gas, electricity and water had been shut off. The only explanation
>>was a note reading: Nothing Found - ATF. Neighbors informed Lawmaster that 60
>>agents in a joint team of local and state police and the Federal Bureau of
>>Alcohol, Tobacco, & Firearms had raided the house to search for illegal weapo-
>>ns. Lawmaster's lawyer is demanding to see the affidavit supporting the search
>>warrant, but the Tulsa federal attorney has had it sealed.
>> - American Rifleman
>> March 1992.
>>
>>Army Chopper Spooks Cattle
>>
>>Maine farmer Bill Melgey is suing the U.S. government for $150,000 following
>>an incident in which an Army helicopter swooped down over his land at tree
>>level, terrifying the cows Melgey was herding. Melgey was trampled in the
>>subsequent stampede and sustained permanent injuries.
>> - Bangor Daily News
>> May 30, 1992.
>>
>>Cops Bust Rose Bushes
>>
>>Mark Campbell of Glastonbury, CT. is suing the local police department for
>>$750,000 over a faulty 1989 bust which cost him his job, home, and family.
>>Cops raided Campbell's new condominium on a tip from the DEA, which had track-
>>ed a fertilizer shipment from Applied Hydroponics to the condo. Police did
>>find marijuana plants in Campbell's basement but Manchester Superior Court
>>Judge Sam Sferazza ruled that the search warrant had been illegally obtained
>>and dropped the charges after Campbell testified that he had seen the Applied
>>Hydroponics ad in Popular Science, and had purchased the fertilizer for the
>>rose bushes outside his condo. In the meantime, however, Campbell had been
>>fired from his job, his wife left him and took the kids to avoid prosecution,
>>and the condo was foreclosed when he could no longer meet payments.
>> - Glastonbury Citizen
>> June 18, 1992.
>>
>>Cops Bust Elderberry Bushes
>>
>>The Florida ACLU is representing an Orlando family in a $200,000 false arrest
>>suit after the sheriff's department mistook their elderberry bushes for marij-
>>uana plants. Two dozen deputies swarmed over the home of Ed and Jane Carden,
>>drawing guns and handcuffing family members face-down in the yard before real-
>>izing their mistake. "It was terrifying," says Ed Carden.
>> - Santa Fe New Mexican
>> April 30, 1992.
>>
>>MOM TO SUE DEA IN BOGUS BUST
>>
>>The DEA has agreed to provide reimbursement for damages sustained to the home
>>of Gracia Figueroa of Pasco, WA. after it was ransacked by their agents in a
>>raid which turned up no contraband. But Figueroa, who says agents broke down
>>her door, pulled her daughters from their beds and held them at gunpoint,
>>still plans to sue. DEA calls the raid legitimate, noting that Figueroa's ex-
>>husband had been arrested on a drug charge in Wisconsin the day before.
>> - Seattle Post Intelligencer
>> December 18, 1992
>>
>>BOGUS BUST ON HIGH SEAS
>>
>>Steve Decter and his wife were taken into custody and hauled across 400 miles
>>of open sea to Key West after their cabin cruiser, the Night Breeze, was
>>stopped by the Coast Guard for a "routine inspection" during a vacation cruise
>>in the Caribbean. The Coast Guard had the Night Breeze stripped, incurring
>>some $8000 in damages, but no contraband was found. The Coast Guard says a
>>computer check indicated the Night Breeze had recently been overhauled in
>>Cartagena, Colombia, a notorious drug port. Decter says the Coast Guard never
>>told him why he and his wife were being held until after they arrived in Key
>>West. "We were kidnapped for four days," he says.
>> - Miami Herald
>> December 4, 1992.
>>
>>EXEC SEEKS $20 MILLION IN BOGUS BUST
>>
>>Donald Carlson, the vice president of the Fortune 500 Anacomp company who was
>>shot by DEA and Customs agents after a bum tip from a paid informant, is
>>seeking $20 million in damages. Carlson suffered a punctured lung in the mist-
>>aken raid.
>> - San Diego Union-Tribune
>> December 2, 1992.
>>
>>RETIRED COUPLE BRUTALIZED IN BOGUS RAID
>>
>>William Hauselmann, a 64-year-old retired ranch foreman was wrestled and
>>pinned to the floor of his Oakdale, CA. home by Stanislaus County drug agents
>>as his wife was held at gunpoint in her bathrobe. "They were like bandits -
>>whooping and hollering like they were the ones on drugs," said Marian Hausel-
>>mann, 61. The Sheriff's Department admits that the tip that led to the raid
>>was "180 degress wrong."
>> - San Diego Union
>> December 1, 1992.
>>
>>SWAT Team Terrorizes Elderly Couple
>>
>>Retirees Marian and William Hauselmann say their worst vice is that they eat
>>too much bratwurst. But in November, a SWAT team with ski masks kicked down
>>the doors of their Oakdale, Ca. home and held them at gunpoint for 45 minutes
>>as they searched for drugs. The Sheriff's Department now admits that the
>>informant's tip which led them to the house was "180 degrees wrong." But the
>>Hauselmann's still have nightmares. "They put a pillowcase on my head and
>>handcuffed me and forced me to stay on the floor," says Marian. "My husband
>>and I tried to speak and they screamed to shut up. It was the worst thing that
>>ever happened to us." William, 64, who has a heart condition, says officers
>>stepped on his back and cut his face while wrestling him to the floor. Marian
>>still complains of sore wrists caused by the plastic cuffs. "Funny thing is,
>>after they realized their mistake, they had to ask us for something to cut
>>them off with!" Although they now have trouble sleeping, Marian says "we're
>>not going to a shrink. It's those police who need psychiatrists."
>> - USA Today
>> December 1, 1993
>>
>>NYPD "TERROR RAID" ON WOMAN'S APARTMENT
>>
>>Sylvia Romero, 20, a pre-med student at New York's Fordham University, and her
>>sister Elsa, who is on medication for a nervous disorder, were sprayed in the
>>face with Mace, strip-searched, handcuffed, and made to lie on the floor as
>>15 plainclothes housing police ransacked their Bronx apartment in a surprise
>>raid. "As I approached the door, they were banging it down," says Romero. "I
>>asked what was going on. Through the crack they sprayed me in the face with
>>Mace." Romero says the officers wore civilian clothes and did not identify
>>themselves. When she asked what was happening, one cop shouted, "Bitches -
>>shut the fuck up!" The sisters were dragged from the apartment, sobbing and
>>handcuffed, but were released when no contraband was found. They returned to
>>find the apartment trashed and their pet dog Crissy missing. Police said that
>>they had taken the pet to the pound, and the Romeros had to pay $25 to get
>>Crissy back. The Romeros' mother Victoria, who also lives at the apartment,
>>had been visiting her son Pedro Segarra in Hartford, CT. when the raid happen-
>>ed. Segarra, who is an attorney for the city of Hartford, says, "My mother's
>>biggest fear was that someone would break into the apartment and something
>>would happen to her children. She never expected that it would be the cops."
>>Housing Police Chief Joseph Keeney said a "high-level informant" had dropped
>>a tip that the apartment was being used to store heroin and defended the raid
>>as "standard procedure." But Ron Kuby, the Romeros' attorney, accuses the
>>police of racism. "This is the kind of thing that simply does not happen to
>>white people in New York City, no matter what the offense."
>> - NY Daily News
>> November 5-6, 1992.
>>
>>FAMILY SEEKS $6 MILLION IN BOGUS BUST
>>
>>Jerry and Denise Jones of Guthrie, OK. are seeking $6 million in damages from
>>the federal government following a mistaken drug raid on their home. In Decem-
>>ber 1991, DEA agents knocked down the Jones' front door with an ax and wrestl-
>>ed Jerry to the ground while pointing guns at Denise and their 8-year-old
>>daughters Laura and Misty before realizing they had read the address on the
>>warrant wrong.
>> - Tulsa World
>> September 23, 1992.
>>
>>OFFICERS CHARGED IN BOGUS BUSTS
>>
>>Two Jacksonville police officers were arrested in an investigation of charges
>>that a group within the city police force has been planting crack cocaine on
>>drug suspects. Sheriff Jim McMillan says that at least 16 pieces of crack have
>>been found in two police cars and that more arrests are possible. The officers
>>are charged with using their own crack as evidence against arrested suspects.
>>The scandal could taint up to 200 drug cases now pending, and McMillan says,
>>"There's no doubt that some folks have gone to jail that probably wouldn't
>>have if this hadn't been done. I think they've been wronged."
>> - Florida Times-Union
>> October 29, 1992.
>>
>>Family Feels "Raped" By Bogus Bust
>>
>>When Bloomington Police knocked on the door of Michael and Katrina Moore at
>>10:30pm on August 4, their 11-year-old daughter answered. The officers barged
>>in, knocking the girl back, then proceeded to the bedroom and rousted the
>>sleeping Michael and Katrina from bed. Relates Katrina: "I said, 'Officer,
>>I'm not dressed,' and he said, 'I don't care, get up...." Katrina says he
>>kept the flashlight aimed at her breasts as she hurriedly dressed. Over the
>>next two hours, the officers searched the house top to bottom, but only found
>>a bong - in the bedroom of the Moores' 17-year-old son. The Moores' have filed
>>a complaint, but police say the warrant was based on an informant's tip. "They
>>were very rude, very hateful," says Katrina. "They treated us like we were
>>dirt. I feel like I've been raped."
>> - Indiana Daily Student
>> September 10, 1993.
>>
>>Well, now you all know why the War On Drugs has to end. I hope this makes
>>you all take some sort of action.
>> Arian
The Front Line
>>From: dr...@cnsvax.uwec.edu
>>Newsgroups: talk.politics.drugs
>>Subject: Can Of Worms. (News digest)
>>Message-ID: <1994Nov8.1...@cnsvax.uwec.edu>
>>Date: 8 Nov 94 19:14:54 -0600
>>Here is a great file I got from a information pack rat. It is
>>interesting searching for your home state, or words like police
>>judge, or other public officials that have been arrested for drug
>>crimes.
>>Archive this one! I did. It's on hemp.uwec.edu's gopher under
>>pub/drugs/war-on-drugs/can-of-worms (split in parts or whole)
>>-- Danny
>>..........................................................................
>>WORMSCAN.TXT Updated: 941103
>>(c) Copyright 1994, by <by...@mcimail.com>, proliferate freely.
>>What had at first seemed to be merely a can of worms has,
>>upon closer examination, proven to be a barrel of vipers.
>>No attempt has been made to note every news item. These are
>>simply those cases which have come to my attention in the
>>everyday news. Note that many sources are radio news reports,
>>and thus the spelling of many names is undoubtedly bogus.
>>Additions, comments, criticisms, clarifications, or corrections
>>(even mispellings and typograhpical errors) should be directed
>>to: David P Beiter, 1/2 Fast Rd, Ritner, KY 42639
>>606/376-3137. by...@mcimail.com
>>All items are Monticello, Wayne County, Kentucky, United States
>>of America, unless otherwise specified.
>>Sources include:
>>The Wayne County Outlook, Monticello, KY.
>>The Courier-Journal, Louisville, KY.
>>WFLW, WKYM & WMKZ, radio, Monticello, KY.
>>WSEK & WSFC, radio, Somerset, KY.
>>WBBM, radio, Chicago, IL.
>>WBKY, WUKY, radio, University of Kentucky, Lexington, KY.
>>WEKU, radio, Eastern Kentucky University, Richmond, KY.
>>WKYU, radio, Western Kentucky University, Bowling Green, KY
>>WHAS, radio, Louisville, KY.
>>WLAP, radio, Lexington, KY.
>>KET = Kentucky Educational Television rebroadcast of WKYT, WLEX, Lexington or
>> WHAS, WLKY, WAVE, Louisville or WTVQ, Hazard. local news.
>>CBC = Canadian Broadcasting Corporation
>>CNN = Cable News Network radio news.
>>KNN = Kentucky News Network & KYnet = The Kentucky Net.
>>All times are Central Time, even if the broadcast originates in a
>>different time zone. Dates (YYMMDD) in the header are generally
>>the date of the news item, not the date of the action.
>>810000. Marion County, KY. Officials in the Kentucky state
>>government became suspicious of cash excesses in banks in Marion
>>County, KY. An investigation led to the purchase of the Bank [of
>>Lebanon? (Marion County Seat)] by a cabinet official [The
>>Kentucky State Secretary of Commerce?] Needless to say, no
>>evidence of marijuana cultivation or other illicit activities was
>>uncovered. Al Cross, reporter for The Courier-Journal, personal
>>communication.
>>820000. Hart County, Kentucky. Bowling Green, KY. "Thirteen
>>arraigned in marijuana case" in Bowling Green, KY after raids on
>>Hart County KY marijuana fields on 26 July. Donnie Nunn, former
>>Hart County KY Sheriff, Joe Dunagan, and Tm Chaney, all of Horse
>>Cave; Hulen Russell, Charles Richardson, Jr, and Gary Coffee, all
>>of Hardyville; James Stanon [Stanton?], of Munfordville; James
>>Benningfield of Magnolia; Freeman Swartz of Summerville; and
>>Randall Skaggs, Neal Lnu, James K. Mattingly, and James N.
>>Mattingly, of Lebanon. Also Nunn, Stanton, and Russell were
>>indicted on charges of attempting to bribe two State Police
>>Officers, Ron West and Robert Sheldon, and Hart County Sheriff
>>Daymond Humphrey. 22,500 marijuana plants in five locations in
>>Hart Co were confiscated on 26 July and 8,000 on 29 July at
>>another Hart Co site. At the time, this was the biggest
>>marijuana raid in Kentucky history, valued at over $12 million.
>>Newspaper clipping, Hart Co? Jane Paquin, a neighbor to the
>>largest fields, personal communication.
>>841100. In November 1984 FBI agents in Florida intercepted a
>>shipment of 760 pounds of cocaine from Honduras and arrested a
>>top-ranking Honduran officer, Jose Bueso Rosa, for his role in a
>>plot to overthrow and murder the President of Honduras, to be
>>financed by $10 million from the drug deal. And from 1982 to
>>1986 a drugs-and-arms network which supplied the contras operated
>>out of Honduran airstrips, according to Jose Blandon, former aide
>>to Manuel Noriega, and ABC News. After Bueso was convicted,
>>Oliver North and six other Administration officials pleaded for
>>leniency in sentencing him. They were willing to overlook
>>Bueso's association with drug smugglers because of his valuable,
>>unspecified services to U. S. policy makers. The DEA denies
>>that it showed similar leniency toward the contras' patrons when
>>it closed its office in Tegucigalpa, Honduras between 1983 and
>>1988. The Nation, May 7 1988, p634.
>>850912.. Andrew Thorton III, retired Lexington, Kentucky Police
>>Department Narcotics Officer, crash landed via parachute in
>>suburban Knoxville TN with 79 pounds of cocaine. Several other
>>duffle bags of cocaine were found in the Chattahoochee National
>>Forest, totalling approximately 400 pounds. ref:multiple news
>>reports. See 870112, 871123, 890225, 900820, 930409, Sally
>>Denton, The Bluegrass Conspiracy, Doubleday, 1990.
>>860220. Rumors abound that the FBI had caught Joe Conn, former
>>Wayne County, KY Sheriff; Ralph Miniard, Monticello, KY Chief of
>>Police; and Don Richardson, local gas station operator. They are
>>alleged to have been caught loading marijuana into an airplane
>>owned by Nick Cooley, a local coal tycoon. This rumor sounded
>>fresh, but there is also a rumor of letting Joe Conn serve out
>>his term as Sheriff, which would put it as last year. Present
>>Sheriff Jim Hill would neither confirm nor deny, but eventually
>>admitted that he had heard the rumor. He was not happy about my
>>questioning.
>>860319. Brenda Sexton at The Wayne County Outlook says that they
>>tried three times to check out the Joe Conn rumor at Federal
>>Court in London, KY, but all were negative. She did not know the
>>source of the rumors. [It may have been the local radio
>>station.] Jim Hill, present Wayne County Sheriff, seemed very
>>agitated when I questioned him, did not want to talk and ran out
>>of office. On 860809 Donald Jones says that Conn, Miniard, and
>>Richardson were caught off-loading in northern Kentucky. Carl
>>Jones says that were caught on-loading at Somerset airport.
>>Other sources have said that Joe Conn was caught transporting
>>marijuana three times, locally (McCreary County), northern
>>Kentucky, and in Georgia.
>>860324. Marion Campbell, Kentucky State Police Commissioner, is
>>arrested for extorting a one million dollar bribe from a cocaine
>>smuggler (also an FBI agent). This was for airport landing
>>rights in Morgan Co KY. Several other officials were arrested
>>for assorted corruption: former Morgan County, Kentucky
>>Judge-Executive Gene Allen; Allen's son Steve; Morgan County,
>>Kentucky Sheriff Roger Benton; Coal Baron Titus Frederick; former
>>Kentucky District Judge James H Noble; former State Senator and
>>former State Trooper Lester Burns, Jr; and physician, Dr Bill
>>Davis. ref: "Operation Leviticus" of the FBI. They weren't even
>>looking for drug smuggling! The FBI thought they were looking at
>>coal money!!
>>860330. The Whitley County Kentucky Sheriff, one other KY & 3 TN
>>Sheriffs are arrested for drug trafficking. Assorted newscasts.
>>860619. Kentucky State Police Detective, 19 year veteran of The
>>Force, Joseph Greenwall (Greenwald), age 41, of Loretto, Marion
>>Co KY is arrested for extorting $5000 to protect marijuana
>>growers, after a two month investigation. Arraignment is set for
>>27 June. Ref: WLEX, CNN News.
>>870700, Playboy, p47. NORML (National Organization for the
>>Reform of Marijuana Laws) has a list of approximately 300 public
>>officials who have been involved in drug crimes in the past three
>>years.
>>860700. Personal communication, John Ruehle, a Dade County, FL
>>resident. He states that per capita drug trafficking arrests are
>>greater among police than among the general population in Miami
>>and/or Dade Co FL.
>>860811. 76- 86? Boston, MA. Federal Grand Jury indictments
>>have been handed down for 10 police officers, including 2 current
>>police chiefs & 1 former chief, including Gerald Clemente, 52,
>>retired Captain of Metropolitan District Commission & Thomas
>>Doherty, 45, former Medford Police Lieutenant, for police exam
>>theft & rigging of scores. This was used to maneuver
>>conspirators into key positions to cover for crimes. These
>>include a $1.5 megabux bank robbery at Medford, MA & cocaine
>>trafficking from Tennessee in 84. Thomas Doherty shot Joseph
>>Bangs, retired MDC police sergeant, 4 times but did not kill
>>him. Bangs then squealed. Various police are accused of
>>assorted robberies, drug trafficking, IRA gun trafficking.
>>Newsweek: August 11, 1986 p 24.
>>84-86. Flint MI. 14 MI police officers indicted on drug
>>charges. Sinsemilla Tips v6#2p16.
>>86 TN. East Tennessee Sheriffs' report. Scott County Tennessee
>>Sheriff Marion Carson & deputy Wayne Caldwell are charged by a
>>Federal Grand jury with conspiracy & selling methaqualone,
>>marijuana, cocaine & diazapam. Claiborne County Tennessee
>>Sheriff Billy Wayne Smith & Juvenile Court Referee R. Jackson
>>Rose pleaded guilty to conspiring to take payoffs to protect
>>gambling operations. Since 82, The Sheriff of Cocke Co, TN Bobby
>>Stinson; The Sheriff of Roane Co, TN Gillis Narramore; The
>>Sheriff of Union Co, TN Paul Hill; and The Sheriff of Anderson
>>Co, TN Dennis O Trotter also have been arrested for drug
>>trafficking.
>>860812, Minneapolis, MN, CNN, 11:35 PM..Small amounts of speed,
>>marijuana, and LSD were found in various police cruisers.
>>Marijuana was also found in the central garage locker. Speed was
>>found hidden in a steering wheel. Apparently the illegal drugs
>>were for personal use, not resale. Chief Bozo says that he is
>>still opposed to drug testing for cops, but not for ordinary
>>citizens.
>>860813, Mexico. Victor Cortez, DEA agent in Guadalajara was
>>tortured by 11 Mexican state police officers in an attempt to
>>gain information on collaborators. Ref: Newsweek Aug 25, 86,
>>p42. The Courier-Journal, 21 Aug 86, p2.
>>860909, Monitor Radio. 26 Sheriffs in GA & TN have been
>>arrested & convicted for drug trafficking. Ryan Freemantle,
>>author, The Fix
>>860924, New York, NY. In the 77th Precinct of Brooklyn, NY,
>>thirteen cops have been arrested for shaking down drug dealers,
>>and reselling drugs, mostly crack. Ref: CNN News, WBKY, 11:30PM
>>CDT. Paul Harvey, 9 Oct 86, quotes Newsday, as saying that
>>thirteen cops sledgehammered their way into drug dealers' houses,
>>stole drugs & money, and resold drugs.
>>860929, Plainfield, NJ. Surprise urine tests of all police &
>>firemen in May yielded 20 positive for marijuana and/or cocaine,
>>including 2 cops. On 16 July, the suspended firemen filed in
>>federal court. US District Judge H Lee Sarokin ruled that "mass
>>roundup urinalysis" violated constitutional prohibitions against
>>unreasonable search & seizure. Ref: Newsweek, Sep 29, 1986,
>>p18. But of course it's not unconstitutional nor unreasonable
>>for mass urinalysis of schoolchildren.
>>861002, San Antonio, TX. There is a loss of credibility of the
>>police department. There have been assorted scandals, such as
>>Cop Smith (murderer, arsonist) being shot by cop Ferrell Tucker
>>for knowing too much. A 34 year veteran, unnamed, was arrested
>>on drug charges. Ref: CNN, WBKY, 2 Oct 86, 3:30pm; 31 Oct 86,
>>11:25PM
>>861007, Pikeville, KY. Not a drug story, probably. Pike County
>>Kentucky Sheriff Charles "Fuzzy" Keesee "misplaced" $300,000 in
>>tax collections during his previous administration. The
>>Courier-Journal, p1
>>861007, Louisville, KY. The Jefferson County Commissioner, Carl
>>Brown, is charged with distribution of marijuana and cocaine.
>>The Courier-Journal, pB4
>>861010, London, KY. Morgan Co Judge-Executive Gene Allen has a
>>motion to dismiss charges of conspiracy for murder of VA man in
>>Morgan Co drug ring. WBKY
>>861011?, Whitley County, KY. Larry R Patrick of Williamsburg is
>>convicted on conspiracy to import cocaine. He was found guilty
>>of scheming with former Scott Co, TN, Sheriff Marion Carson &
>>Deputy Wayne Caldwell. The Wayne County Outlook p22, from The
>>Whitley Republican.
>>861018, KY. See The Courier-Journal, pB1 for Kentucky State
>>Police Commissioner, Captain Marion "Butch" Campbell & Kentucky
>>State Trooper Gerald Griggs were arrested for cocaine
>>trafficking.
>>861022, London, KY. Gene Allen (Morgan County Kentucky
>>Judge-Executive) & Gerald Griggs (State Police Trooper) are
>>convicted of "murder for hire". Marion Campbell (Kentucky State
>>Police Commissioner) testified that they were part of a
>>counter-investigation so secret that no written records were ever
>>kept of their findings, but this was not convincing to the jury.
>>861024, Miami FL. Seven cops are on trial for selling $5
>>million (15M$, DH, 2 Nov 86) of cocaine stolen from smugglers.
>>CNN News, 3:45PM
>>861110, "Inside the DEA", Reason, Dec 86, p23-29. A compendium
>>of DEA (Drug Enforcement Administration) corruption reported by
>>Dale Gieringer, Decision & Ethics Center, Dept of
>>Engineering-Economic Systems, Stanford Univ.
>>861111, New York City. There is a New York City Police
>>"slowdown" (strikes are illegal) to protest investigation of
>>police corruption. CNN News, WBKY, 11:40PM. See 860924
>>13 Nov 86. London, KY. "Corruption probe: Half of cases
>>resolved" by Assistant US Attorney James E. Arehart. Gene
>>Allen, 3 time Judge-Executive of Morgan County, Kentucky was
>>convicted of conspiracy to murder. Gerald Griggs, Kentucky State
>>Police Trooper was convicted in the same murder for hire scheme.
>>Both were represented by Kevin Charters of Lexington, KY.
>>William Titus Frederick, coal operator and businessman, of West
>>Liberty, KY pleaded guilty to manufacturing marijuana. Benny
>>Neely, London, pleaded guilty to transporting stolen heavy
>>equipment across state lines. Norman B. Williams III, of
>>Detroit, MI pleaded guilty to transporting a stolen car across
>>state lines. Dr. Billy Davis, Urgent Care Center of Burnside,
>>KY pleaded guilty to conspiracy to defraud two insurance
>>companies of $1.1 million for a phony traffic accident. Lester
>>H. Burns, Jr, former Kentucky State Senator & attorney,
>>Somerset, KY, pleaded guilty to insurance fraud and pleaded
>>guilty to conspiracy to transport stolen money ($1.9 million
>>stolen from the Dr. R. J. Acker robbery & murder) across state
>>lines. James H. Noble, former Kentucky District Judge,
>>convicted of obstruction of justice and yet to be tried in the
>>insurance fraud conspiracy. Captain Marion "Butch" Campbell,
>>Kentucky State Police Commissioner, to be tried on Jan 5, 87, for
>>extortion for allegedly taking money for protecting
>>drug-trafficking activities. Roger Benton, Morgan County
>>Kentucky Sheriff, accused of conspiracy of drug-trafficking.
>>Lexington Herald-Leader, Nov 13, 86, pA1, A16.
>>861113, Knoxville, TN. 9 cops arrested in the Charles Walker
>>cocaine trafficking ring. Knoxville TV.
>>861118, Miami, FL. 1300 pounds marijuana was stolen from police
>>headquarters evidence storage. This theft is thought to be an
>>inside job. The marijuana was valued at $4 million. That's
>>$3000 per pound. This is the 4th major theft of drug evidence in
>>last few months. CNN News, WBKY (Lexington, KY) 11:45PM. Also a
>>Columbian cocaine ring was indicted, but the indictees are safely
>>in Columbia.
>>861120, London, KY. Lester Burns, Jr, 55, (attorney, former
>>Kentucky State Police trooper, former Kentucky State Senator)
>>pleaded guilty to two charges of conspiracy with Dr. Bill Davis
>>to defraud two insurance companies by faking a vehicle accident.
>>He also pleaded guilty to receiving stolen money from the Dr.
>>Roscoe Acker robbery & murder. Charges of conspiracy with former
>>Breathitt District Judge James Noble (recently convicted of
>>perjury in Federal Court in Lexington) to defraud an insurance
>>company were dropped. The Assistant US Attorney was James
>>Arehart. The Judge was Eugene Siler, Jr. The Wayne County
>>Outlook, 20 Nov 86, p18. From The Sentinel-Echo.
>>861126, Somerset, KY. The younger brother of David Dick,
>>Kentucky State Police, was arrested last month for cultivating 78
>>marijuana plants. The police missed a quarter acre plot. James
>>Dick, older brother, was recently arrested on drug charges.
>>Personal communication, Dallas Hammond. Trooper Dick was finally
>>apprehended 901104, see 901108.
>>861200. Lester Burns, Jr., former Kentucky State Senator, former
>>Kentucky State Police, disbarred. Now former attorney.
>>861212, London, KY. Gene Allen, Judge-Executive of Morgan
>>County, Kentucky is sentenced to 5 years for conspiracy to
>>murder. Gerald Griggs, Kentucky State Police, had his sentencing
>>delayed. Titus Frederick, coal baron, was let off in return for
>>testifying against Captain Marion "Butch" Campbell, Kentucky
>>State Police Commissioner, in his trial for conspiracy to
>>distribute illegal drugs. Ref: KET, WLEX
>>861216, London, KY. Gerald Griggs, Kentucky State Police, is
>>sentenced to 5 years in prison for conspiracy to commit murder
>>in "Operation Leviticus" drug deal.
>>861222, Louisville, KY. Carl Brown, Jefferson County
>>Commissioner, is arraigned for something, and sent to
>>Missouri [?], for psychiatric evaluation. Brown is to be
>>arraigned later on drug distribution charges. His left hand was
>>severely swollen and ace bandaged, but no explanation was given.
>>He also looked very woozy and inattentive. KET, Louisville.
>>8612??, London, KY. Sherry Lorraine Hodge pleaded guilty to
>>conspiracy to transport stolen money across state lines in the
>>$1,900,000 (that's 1.9 megabux) Acker robbery & murder. Hodge
>>says that she gave $300,000 to C. Gene Foust, 49, Detective
>>Sergeant and Head Narcotics Officer and 21-year veteran of the
>>Oak Ridge Tennessee Police Department. The Head Narcotics
>>Officer was to invest it "to make more money for me." Mrs.
>>Hodge's attorney is Robert Wilmott of Lexington KY. Formerly her
>>attorney was Lester Burns, Jr, former Kentucky State Senator,
>>former Kentucky State Police, of Somerset KY, who pleaded guilty
>>to receiving stolen money from the robbery and is now disbarred.
>>The Judge is Eugene Siler, Jr. Co-transporters of stolen money
>>are Anna Louise Farley (mother of Donald Terry Bartley), Sharon
>>Joyce Wilson, & Barry Wilson who helped Hodge transport
>>$1,200,000 from Florida to Knoxville, TN after the arrest of her
>>husband, Benny Lee Hodge. Donald Terry Bartley, Roger Dale
>>Epperson, and Benny Lee Hodge are to be tried May 1987 for
>>robbery & murder of a Jackson County, KY couple, and also face
>>unspecified charges in other unspecified states. The FBI
>>searched the home of C. Gene Foust on 2 Dec 86. Wayne County
>>Outlook, 24 Dec 86, p19. From The Sentinel- Echo.
>>861231. Lester Burns, Jr is ordered to return $175,000 to Dr.
>>Roscoe Acker. This was his attorney's fee for the defense of the
>>murderers/robbers.
>>870112, Boston, MA. David McCuen joined Wilmington police in 73,
>>and was promoted to sergeant in 78, after paying $4000 for a copy
>>of the sergeant's exam. Several hundred individuals eventually
>>were involved. Many individuals were placed into positions to
>>promote the organized crimes of the Police Department. Chief of
>>the scam was Gerald W Clemente, who did a $1.5 million bank
>>robbery and other burglaries to finance drug deals. Margo
>>Monaco, Boston, National Public Radio. See also Newsweek, 11 Aug
>>86.
>>870112, Lexington, KY. Captain Marion "Butch" Campbell, Kentucky
>>State Police Commissioner, and Roger Benton, Morgan County
>>Kentucky Sheriff, are on trial. Houston McNeal, two years a
>>undercover FBI agent, testified that he had made payments of
>>$5000 a month to Campbell, Benton, and Titus Frederick for
>>landing rights at the West Liberty, KY airport. (It is unclear
>>if this was each or total.) KET, WLEX
>>870113, Lexington, KY. In the Captain Marion "Butch" Campbell,
>>Kentucky State Police Commissioner trial, Campbell is represented
>>by William Johnson. The Trial apparently started 9 Jan 87.
>>Houston McNeal, two years an undercover FBI agent from Virginia,
>>testified that he had made installment payments to Roger Benton,
>>Morgan County Kentucky Sheriff; Gene Allen, Morgan County
>>Kentucky Judge-Executive; and Marion Campbell, Kentucky State
>>Police Commissioner, for assistance in drug trafficking. McNeal
>>said that he met Campbell on a dark backroad, where Campbell
>>thanked him for the money. A tape recording of Campbell taking
>>payoffs from McNeal was played. WBKY (Lexington, KY)
>>870114, Lexington, KY. In the Kentucky State Police Commissioner
>>Captain Marion "Butch" Campbell trial, Titus Frederick, coal
>>baron and marijuana manufacturer testified that in a meeting at
>>Frederick's house in 1984, three-time Morgan County Kentucky
>>Judge-Executive Gene Allen and Marion Campbell had asked him for
>>contacts in the marijuana and cocaine business. Lester Burns,
>>Jr, former Kentucky State Senator, former Kentucky State Police
>>Trooper, former attorney (now disbarred) bankrolled the
>>operation, and Marion Campbell was in charge of security at the
>>Morgan County airport. Their business grossed about 3/4 of a
>>million dollars a week in cocaine. Houston McNeal, undercover
>>Virginia FBI investigator, testified that Campbell said that he
>>was receiving payments from undercover agents. It is unclear
>>whether Campbell thought that they were FBI agents or drug
>>dealers. Or both. WBKY. KET, WLKY(?)
>>870115, Lexington, KY. In the Kentucky State Police Commissioner
>>Captain Marion "Butch" Campbell trial, Steve Allen, son of the
>>Morgan County Judge-Executive, testified that he saw a $90,000
>>cocaine sale in November 85 at the house of his father, Morgan
>>County Kentucky Judge-Executive Gene Allen. In this transaction,
>>Gene Allen was paid his share plus a share to pass along to
>>Marion Campbell. Gene Allen, Morgan County Kentucky
>>Judge-Executive and convicted murder conspirator, testified that
>>he has known Marion Campbell for 25 years and Morgan County
>>Sheriff Roger Benton all of his life. He met several times in
>>late 1983 with Marion Campbell, Titus Frederick, and Lester
>>Burns, Jr to import cocaine from Okalachee, FL. Campbell was
>>said to want the money for his retirement fund. Titus Frederick
>>testified that Gene Allen and Marion Campbell had pushed him to
>>find a cocaine connection. WEKU, KET, WLEX
>>870116, Lexington, KY. In the Kentucky State Police
>>Commissioner, Captain Marion "Butch" Campbell trial, Gene Allen,
>>former Morgan County, Kentucky Judge-Executive who has been
>>convicted of conspiracy to murder, was cross examined. He has
>>changed his story because he got religion in jail. In his trial
>>in September 86 he claimed that he and Campbell were running
>>their own investigation of drug corruption, without telling
>>anyone else and keeping no records of what they had discovered.
>>He passed money to Campbell once by laying an envelope full of
>>money on the dash of Campbell's truck, and once on the truck
>>seat, but never actually in Campbell's hand. KET, WLKY, 10:07PM
>>870121, Miami, FL. Seven Miami cops are given a mistrial in a
>>case of racketeering and drug corruption. The reasons are
>>undisclosed. See 24 Oct 86, 16 Jan 87
>>870123, Lexington, KY. In the Kentucky State Police
>>Commissioner, Captain Marion "Butch" Campbell trial, Jack Evans,
>>Kentucky State Police, testified that he had talked with Campbell
>>thrice about the trial, and got the idea (but was never told
>>openly) that Campbell wanted him to perjure. WBKY
>>870126, "Is There a Contra Drug Connection?", Newsweek, p26.
>>Gary Betzner, 45, a crop duster pilot from Arkansas, says that he
>>imported Columbian cocaine thru contra airstrips in Costa Rica
>>with George Morales, a Columbian emigre with an aircraft
>>chartering business. Both claim that they had the full knowledge
>>and assistance of CIA and DEA. A third witness, unnamed, claims
>>to have seen Southern Air Transport planes being loaded with
>>cocaine in Barranquilla, Columbia in 1985. So cocaine
>>trafficking is OK if it supports revolution in Nicaragua.
>>870126, Lexington, KY. In the Kentucky State Police
>>Commissioner, Captain Marion "Butch" Campbell & Roger Benton
>>trial, Louie di Falais, US Attorney & apparently part of the
>>"Operation Leviticus" investigation, testified that in two years
>>of investigation of Marion Campbell, Campbell gave no indications
>>of ever conducting his own investigation. The Chief of Police of
>>West Liberty, the Morgan County Seat, said that he knew nothing
>>of the two years of drug traffic thru the West Liberty airport.
>>Roger Benton, Sheriff of Morgan County, Kentucky, has a previous
>>conviction for bootlegging. KET, WTVQ
>>870127, Lexington, KY. In the Kentucky State Police
>>Commissioner, Captain Marion "Butch Campbell & Morgan County
>>Kentucky Sheriff Roger Benton trial, Roger Benton testified that
>>he went along with the drug trafficking in hopes to make some
>>arrests and stop the drug operations. WBKY
>>870202, Miami, FL. Seven cops are given a mistrial in their drug
>>racketeering trial. Thus they did not rob a boat and drown the
>>owners and sell the cocaine. Roman Rodriguez, Ricardo Aleman,
>>Rodolfo Arias, Osvaldo Coello, Arturo de la Vega, Armando
>>Estrada, & Armando Garcia, are the fortunate cops. They managed
>>a fine lifestyle on a $30,000 per year salary. The Judge was
>>Kenneth Ryskamp. The holdout juror was William Rountree.
>>USN&WR, Feb 2, 1987, p28. See 880105 & 880106 for a recant.
>>870204, Lexington, KY. Morgan County Kentucky Sheriff Roger
>>Benton says that he will appeal his conviction on drug
>>trafficking charges on grounds that his trial should have had
>>nothing to do with the trial of Marion "Butch" Campbell. He
>>obviously thinks that Campbell will be found guilty. This came
>>after one verdict was reached but not announced. WKYT/KET
>>870205, Lexington, KY. Roger Benton, Sheriff of Morgan County,
>>KY, is found guilty on all counts, three counts of extortion and
>>two of drug trafficking conspiracy. He faces a maximum sentence
>>of 80 years. WLAP (Lexington, KY), 2PM
>>870206, Lexington, KY. Captain Marion "Butch" Campbell, Kentucky
>>State Police Commissioner, is acquitted on four counts of
>>extortion and given a mistrial on one count of conspiracy to
>>traffic in marijuana and cocaine. WLAP
>>870206, Comment on Kentucky, KET. Three reasons are given for
>>Kentucky State Police Commissioner, Captain Marion "Butch"
>>Campbell's acquittal on charges of extortion and drug
>>trafficking. 1) Gene Allen, Morgan County Judge-Executive
>>changed his story from his trial where he was convicted of
>>conspiracy to murder. Formerly, he had said under oath that
>>Campbell was conducting his own investigation. The new story is
>>that they were indeed trafficking in cocaine. 2) Allen said that
>>on four occasions that he gave payoff money to Campbell, but
>>never directly. Allen was the only solid witness against
>>Campbell on this, but he is a self-confessed perjurer. 3) In a
>>taped meeting with an FBI informant, Campbell thanked him for
>>"information". The prosecution said that this was code word for
>>protection money; the defense said that this was just normal
>>information. The FBI never actually got Campbell on tape
>>accepting payoff money. The jury was leaning towards acquittal
>>on the drug trafficking conspiracy charges, with at least two
>>holdouts. Prosecutor Arehart wants a retrial. I'm sure that
>>none of the jurors would have been in the least bit concerned
>>about their personal safety after finding the State Police
>>Commissioner guilty of drug trafficking!
>>8702??. There are various news reports of a retrial for Kentucky
>>State Police Commissioner, Captain Marion "Butch" Campbell on
>>charges of trafficking in cocaine and marijuana, but no date was
>>given.
>>870223, Washington, DC. "Contra Drug Inquiry Stirs Growing
>>Interest", by Keith Schneider, The New York Times, Tuesday,
>>February 24, 1987, pA22. U. S. Senator John Kerry, Democrat of
>>Massachusetts, a committee member on the Senate Foreign Relations
>>Committee has witnesses and evidence that a private network had
>>been organized by the National Security Council [NSC] and the
>>Central Intelligence Agency [CIA] to provide military equipment
>>to Contras in Nicaragua. The investigators said that they also
>>believed that the same network was shipping cocaine and marijuana
>>back to the United States. Federal officials, of course, deny
>>this vicious rumor spread by Communist sympathizers.
>>870313, Lexington, KY. Kentucky State Police Commissioner,
>>Captain Marion "Butch" Campbell is scheduled for retrial on 11
>>May 87 for conspiracy to traffic in cocaine and marijuana. But
>>11 May 87 will come and go with absolutely no mention on any
>>newscast that a Butch Campbell had ever existed. Morgan County
>>Kentucky Sheriff Roger Benton is denied a retrial on his
>>conviction for extortion and conspiracy to distribute cocaine.
>>Various radio reports.
>>870322, Richmond?, KY. Kentucky State Police crime lab director
>>Glen Morgan Baxter is accused of falsifying hundreds of tests,
>>including his own qualifications. WBKY, 11PM.
>>870326, Lexington, KY. Morgan County, Kentucky, Sheriff Roger
>>Benton is sentenced to 10 years in prison and a fine of $10,000
>>on three counts of extortion and two counts of conspiracy to
>>traffic in illegal drugs. KET
>>870331, Louisville, KY. Jeffrey Miles of 2401 Coolridge Ave,
>>Okalona, age 24 or 25, is shot and killed by Louisville cop, John
>>Rucker (Rutger) in a raid on Miles' home. Miles' crime was to be
>>living in an apartment inhabited two years ago by a suspected
>>drug dealer. (The correct address was available in the phone
>>directory.) The murderer was sentenced to paid leave and
>>consultation with the chaplain. KET
>>870402. James H Noble, Kentucky District Judge, Breathitt
>>County, Kentucky previously convicted of obstruction of justice
>>for offering to lie in the witness stand for Lester Burns, Jr in
>>a mail fraud trial, is temporarily disbarred. Judge Noble was
>>sentenced to two years on the obstruction of justice conviction.
>>8704??, Wayne Co, KY. More unconfirmable rumors that Joe Conn,
>>former Sheriff of Wayne County, Kentucky, is in prison for drug
>>trafficking. Dallas Hammond says that Joe Conn was jailed about
>>five months ago. Reportedly the FBI caught him near
>>Wayne/McCreary line with 18 wheeler full of marijuana headed for
>>the airport in Pine Knot, KY. Harold Tucker says that he was
>>told by Roosevelt Jones that Joe Conn was in prison on drug
>>charges, but could not confirm the details of the reputed
>>arrest. These are unconfirmed rumors only. Nobody has any hard
>>news.
>>870429, Jeffersontown (Louisville), KY. Policeman John Rutger is
>>indicted for second degree manslaughter and suspended from the
>>police department. This is for "accidentally" shooting Jeffrey
>>Miles for the crime of living in an apartment inhabited two years
>>ago by a suspected drug dealer. WHAS. See 870331.
>>870511. This is the supposed retrial date of Kentucky State
>>Police Commissioner (now retired) Captain Marion "Butch" Campbell
>>on charges of conspiracy to traffic in cocaine and marijuana.
>>There was absolutely no mention of this unevent on several
>>Kentucky radio newscasts. See 870313.
>>870515. Lester Burns, Jr., former Kentucky State Senator, former
>>Kentucky State Police, former attorney, is sentenced to eight
>>years in prison, four each for receiving stolen money from
>>Epperson's Acker robbery/murder, and for conspiracy to defraud an
>>insurer. Burns will be eligible for parole in two years. WBKY.
>>See 860324, 860716, 861113, 8612??, 861231, 870114.
>>870518, Ocean County, NJ. Fifteen people are arrested by DEA at
>>the home of a local policeman. No information was given of what
>>they were doing to merit this attention. Phone conversation,
>>Margaret Stiles.
>>870520. The plane used by the Brother-in-law of Alphonso
>>Collero (of Nicaragua Contras) to transport drugs was then used
>>to transport supplies to the contras. This was the testimony of
>>Robert Owen, "The Courier". 25K$ in travelers checks were given
>>to DEA by Alphonso Collero. MacNeil-Lehrer News Hour
>>870524, Steve Waddams, Sunday Morning, CBC (Canadian Broadcasting
>>Corporation), quoting Daniel Sheehan of The Christic Institute of
>>Washington DC. "The Secret Team", started as a CIA Cuban
>>anti-Castro operation, which funded itself by drug trafficking.
>>In about 1966, Richard Secord under CIA auspices, bombed the
>>opposition of Vang Pao, their pet Opium Emperor of Laos. "The
>>Secret Team" was importing 600 pound loads of cocaine from Costa
>>Rica while supplying Nicaraguan contras.
>>870630. In secret testimony in the Iran-Contra hearings, Ramon
>>Milian-Rodriguez testified that he sold to Felix Rodriguis
>>$10,000,000 (ten million dollars) of cocaine for CIA contra
>>funding. WSFC, (ABC)
>>870709. US Attorney General Edwin Meese tries to prevent a House
>>of Representatives Committee from questioning three federal
>>prosecutors in Miami, FL concerning CIA drug and gun smuggling.
>>A House subpoena is issued. CNN, AP
>>8709??, American Information Network Freedom League Newsletter,
>>p6, quoting Daily News Digest, POB 39027, Phoenix, AZ 85069. Lt
>>Col Bo Gritz testified before the House Foreign Affairs
>>Committee, International Narcotics Control Task Force, Larry
>>Smith (D-FL) Chairman. Gritz has 40 hours of video tape with
>>General Khun Sa of Burma, the recognized opium kingpin (700 tons
>>in 86, 900 tons in 87) in the Golden Triangle. Khun Sa "charged
>>American officials, both past and present, with being the chief
>>buyers of drugs produced in that part of the world." Also he
>>claims that he wants to stop drug trafficking, but that the US
>>government won't let him. Khun Sa said that individuals in CIA
>>are some of his best customers. He offered support to DEA to
>>alert them of drug movements, but this was rejected at the
>>headquarters level. Theodore Shackley CIA agent in Laos from
>>1965-1975, was involved with Mao Se Hung (leading drug smuggler)
>>and Santo Trafficante (Florida Mafia boss). Khun Sa says that
>>Richard Armitage (then in the US Embassy, now Assistant Secretary
>>of Defense) financed drug smuggling in VietNam, then in Bangkok
>>from 1975 to 1979. CIA agents Daniel Arnold and Jerry Daniel
>>trafficked weapons and drugs with Khun Sa. Gritz claims that
>>there is a parallel US government which started with the "Phoenix
>>Program" in VietNam twenty years ago.
>>870905, The Nation, p189-192. "How the Drug Czar Got Away", by
>>Martin A. Lee. The gist of the story is that the USA is more
>>interested in implicating Nicaraguan Sandanistas in drug running
>>than in prosecuting smugglers. Also the US Government funded
>>contras with drug money. Jorge Luis Ochoa of Columbia was
>>captured in Spain. The DEA (at least one agent was also member
>>of Lieut Col Oliver North's team) offered to have extradition
>>bungled if Ochoa would implicate the Nicaraguan Sandanista
>>government in cocaine trafficking. Ochoa refused. After 20
>>months, Spain decided that USA was seeking to use Ochoa as a
>>political instrument and denied extradition to USA. Ochoa had
>>fled to Spain in June 1984 after being implicated in the
>>assassination of Lara Bonilla, the Columbian Minister of Justice
>>who had crusaded against his country's $5 billion per year
>>cocaine trade. Alder Berriman Seal (Barry Seal) said he flew
>>1500 kilograms of cocaine from Columbia to Managua for Ochoa.
>>The story quotes The Wall Street Journal as reporting that four
>>imprisoned drug pilots who knew Seal said that Seal was part of
>>contra supply network, delivering weapons and drugs. Seal also
>>took secret photos of Sandanista soldiers loading cocaine on his
>>C-123 transport (the same plane as shot down with Eugene
>>Hasenfus). Ochoa contributed money to contras. Ramon
>>Milian-Rodriguez told Senate Subcommittee on Terrorism, Narcotics
>>and International Operations that he had funneled $10 million to
>>the contras thru former CIA operative Felix Rodriguez in 1983.
>>James Kible, Madrid Spain based DEA agent assigned to Ochoa case
>>and another DEA agent, Victor Oliveira were caught while boarding
>>a plane for Switzerland at Madrid Barajos Airport with $5 million
>>in cash, supposedly for North's contra-aid team. The records of
>>these arrests have been disappeared.
>>870912, 11:01 PM, WBKY. A drug bust in Owensboro, KY, in June
>>1986 lead to conviction of a staff officer and 6 other officers
>>of the Philadelphia, PA, Police Department for drug
>>manufacturing.
>>870913, Clay Co, KY, 3:20PM, WBKY. Cooms? of Clay Co, KY,
>>busted for marijuana production two weeks ago, says that the
>>police should be spending their time chasing criminals, not pot
>>patches. Kentucky State Police Commissioner Elkins replies that
>>there is nothing under the law to make them do so. This may be
>>the same as J. C. Lawson, see Sinsemilla Tips, Fall 87, p24.
>>870921", Time, p33. Jamie Herrera Nevarez, 60, the "Drug Lord of
>>Durango" Mexico and former policeman, was arrested by Mexican
>>police for US DEA. He ran $200 million heroin pipeline into
>>midwest USA.
>>8709??, CIA Drug Connection, The Christic Institute, 1324 North
>>Capitol Street, NW, Wash DC 20002. (202)797-8106. Lawyers from
>>The Christic Institute were retained by Tony Avirgan and Martha
>>Honey, reporters wounded in the May 30, 1984 terrorist bombing in
>>La Penca, Nicaragua. John Hull, CIA contract operative in Costa
>>Rica, has a ranch which is used as airstrip for arms and drug
>>running for Nicaraguan contras. The cocaine was supplied by
>>Columbians Pablo Escobar and Jorge Ochoa, partners of Carlos
>>Lehder. Francisco Paco Chanes was the connection on US end.
>>"The Secret Team", including retired Air Force Maj Gen Richard
>>Secord; Albert Hakim, international arms dealer; Theodore
>>Shackley, head of covert operations during Vice President George
>>Bush's term as Director of the CIA; Thomas Clines, Shackley's
>>deputy; and retired Army Maj Gen John K Singlaub, backed Vang
>>Pao, a major opium trafficker, in Southeast Asia, 1965-75, using
>>the resulting money to train Hmong tribesmen. The heroin
>>connection in USA was Mafia "Don" Santo Trafficante. The opium
>>business banked with Nugen Hand Bank of Australia.
>>870917, Washington, DC. 6000[?] drug trafficking cases dismissed
>>as a result of a FBI investigation of police stealing from drug
>>dealers during arrests. CNN 4:43AM.
>>870919, The Nation, p254-274. There is a spat between Daniel P
>>Sheehan of The Christic Institute and Jonathan Kwitny, author of
>>_The Crimes of Patriots: A True Tale of Dope, Dirty Money, and
>>the CIA_, published by WW Norton, over the extent of USA
>>complicity in Nicaraguan contra drug smuggling.
>>8710??, American Information Network Newsletter, p2. There is
>>more on the Bo Gritz/CIA/heroin connection. The operation is
>>said to have been at its peak in 1975 & 76 under George Bush.
>>CIA agents Theodore Shackley and Richard Armitage (now Acting
>>Assistant Secretary of Defense) as The Far East Trading Company
>>were involved in heroin smuggling with Mao Se Hung. H Ross Perot
>>found the same drug connections and was told by Frank Carlucci
>>(National Security Advisor) to stop pursuing the connection to
>>Richard Armitage. Last year 700 tons of opium were exported from
>>Burma and this year's crop is 900 tons. There is also a
>>statement by Lance Trimmer about two trips to the lair of Khun
>>Sa, opium smuggler and chief of his own 40,000 man private army
>>in Burma. By Don Bell, POB 2223, Palm Beach, FL 33480.
>>871019, Louisville, KY. Tringle, a Louisville Kentucky narcotics
>>officer wrecks his undercover cruiser at high speed while off
>>duty. A cooler full of liquor was found in the vehicle and
>>officer Tringle was found to have a blood alcohol level of 2.5
>>(said to be too drunk to stand up). KET, 32. [That's gotta be
>>0.25 blood alcohol!]
>>871111, Bowling Green, KY. KET, WAVE. John Rucker is found not
>>guilty in the murder of Jeffrey Miles.
>>871112 12:09AM, Chicago, IL, WBBM radio. Eugene Harnalski,
>>Chicago cop, left his badge and service revolver as collateral
>>for a drug buy. Now he is on trial for racketeering, so
>>apparently he was not supposed to do it. This came out in the
>>testimony of the drug dealer [named, but not remembered].
>>871123. Congressman Carroll Hubbard asks FBI to investigate the
>>involvement of Henry Vance (Lexington bigwig recently convicted
>>of supplying the gun used to kill the prosecutor in a drug case
>>in Florida) in wholesale cocaine and marijuana trade in western
>>Kentucky. Hubbard states that major drug smugglers are using
>>local airports, including Bowling Green, KY. On 930416, Comment
>>on Kentucky, Bonnie Kelly (the shooter) is the wife of Mike
>>Kelly, Lexington cop.
>>871130, Time, p29. Mike "Mad Dog" Roark (so named for his fierce
>>pursuit of drug dealers while outfitted in combat fatigues and
>>packing a pistol) prosecutor and mayor of Charleston, WV pleaded
>>guilty to six counts of cocaine possession. Does this sound like
>>any local officials you know? See 880114.
>>8711??, "The Contra-Drug Connection", The Christic Institute,
>>1324 North Capitol Street, NW, Wash DC 20002. (202)797-8106.
>>$2. 12p. Extensive documentation associates several of Oliver
>>North's team with large-scale drug trafficking to finance covert
>>wars in Cuba, Southeast Asia, and Central America, for over two
>>decades. Plane loads of cocaine from Columbia, supplied by Pablo
>>Escobar and Jorge Ochoa, were flown to John Hull's ranch in
>>northern Costa Rica. Three pilots say that they delivered
>>weapons to John Hull's ranch and returned to USA with cocaine and
>>marijuana. Cocaine was also smuggled from John Hull to Miami in
>>frozen shrimp, shipped to Ocean Hunter, Inc and Mr. Shrimp, Inc.
>>880105, CNN News. A Los Angeles Federal Grand Jury indicts nine,
>>including three Mexican police officers for the murder of DEA
>>agent Enrique Camerara Solarez [sp?] in Guadalajara, Mexico three
>>years ago.
>>880105, CNN, 3:13P. I only caught the last part of the story. A
>>Miami cop acquitted in the case of the murder and rip-off of
>>three drug dealers recants. On tape he says that he is sorry and
>>that he disgraced his badge, but that there are thousands of
>>honest police. [Maybe even several thousand honest police, if
>>you were to look over the entire country.] Miami officials want
>>an end to investigations of this case, as it is showing their
>>wonderful city in a bad light, among other reasons.
>>880106, "As It Happens", CBC. In "Miami Vice", a phone interview
>>with Paul Miller, Special Agent, FBI, he states that there were
>>three or four rip-offs of boatloads of cocaine by Miami Police
>>from about May 85 to Summer 85. In the case where three drug
>>smugglers were drowned, eight officers rushed the boat and the
>>victims threw themselves into the sea and drowned themselves.
>>The investigation is probing a conspiracy to kill witnesses. So
>>far, nine have pleaded guilty, four more are cooperating, two
>>more are on trial, two more are fugitives, and twenty more have
>>been suspended from The Force. See 861024, 870121, 870202.
>>880109, The Nation, p6. Chapter 23, page 371, footnote 84 of the
>>Iran/Contra report. In 1986 Fawn Hall asked DEA agents to meet
>>with Michael Leeden. Leeden had a $30,000 contract with
>>Continental Airlines to find out how to stop the DEA from seizing
>>their airplanes when cocaine was found aboard.
>>880114, Charleston, WV, WHAS. 12:04P "Mad Dog" Roark, mayor of
>>Charleston WV, plea bargains guilty on six cocaine charges,
>>twenty-four others were dropped. Mad Dog was sentenced to 179
>>days in jail, three years probation, and a $5000 fine. See
>>871130.
>>880202, Lumberton, NC. An American Indian takes hostages to
>>publicize the actions of the local sheriff. A radio tape by this
>>hostage taker starts with the accusation that the sheriff's
>>department was involved with drug trafficking, and then went on
>>to complain about the killing of a Black and two Indians by the
>>sheriff.
>>880204. General Noriega of Panama is indicted by a Federal Grand
>>Jury in Miami FL on thirty counts of assorted drug trafficking
>>charges, taking millions of dollars in payoffs from The Medellin
>>Cartel, racketeering, conspiracy with Oliver North to fake a
>>shipment of arms from Nicaragua to El Salvador [on the Pia Vesta,
>>which Noriega seized and kept the arms], obtaining chemicals for
>>and protecting cocaine labs, providing airstrips for drug
>>smuggling, providing refuge for drug traffickers, etc. Leon
>>Keller is the Federal Attorney. Also more indictments of Noriega
>>are opened in Tampa for conspiracy to import one million pounds
>>of marijuana. Testimony was given by pilot Floyd Carlton and
>>Panamanian Consul General Jose' Blandon. This was reported by
>>Alan Tomlinson, NPR. On top of that, Noriega has been on the CIA
>>payroll since 1966 at $200,000 per year. Senator John Kerry
>>chaired a hearing on Noriega, with Jose' Blandon as star
>>witness. Blandon says Noriega made $80 million per year in drug
>>trafficking and another $20 million for emigration papers at
>>$4000 per head, allowing Cubans to claim to be Panamanians for
>>migration to USA.
>>880205, Cincinnati, OH. Kentucky State Police Commissioner
>>Marion "Butch" Campbell is appealing in Federal Court the
>>government plans for a retrial on drug trafficking conspiracy
>>charges. Morgan County Kentucky Sheriff Benton, convicted on
>>conspiracy to murder witnesses to drug trafficking, is still not
>>in prison. KET
>>880208, USN&WR, p28. The Medellin Cartel controls 80% of cocaine
>>imported into the United States. Fifty Columbian judges have
>>been murdered by the cartel in the past five years. Columbia is
>>unable [or unwilling?] to control the drug business.
>>880213. An article in The Boston Globe by Stephen Kurkjian and
>>Mark Hosenball reports on the Senator John F Kerry hearings.
>>"About a dozen Nicaraguans who back the contras have been
>>prosecuted in the United states for drug-related felonies."
>>Michael B Palmer, 41, of Florida indicted in June 1986, walked
>>away from an airtight drug smuggling case because a Detroit
>>federal prosecutor dropped it in the "interest of justice".
>>Palmer was alleged to have flown marijuana into US from Columbia
>>from 1977 to 1986. In 1985 & 86 Palmer flew humanitarian aid to
>>Central America for the State Department. Leigh Rich testified
>>that the marijuana smuggling group headed by Palmer grossed
>>billions of dollars. Customs, at the request of the CIA, did not
>>search the planes. The plane was registered to Vortex, Inc, a
>>State Department and CIA contractor.
>>880306, Minneapolis Star Tribune, p17A. An article by Daniel
>>Siegel and Jenny Yancey reports on the Senator John Kerry, Senate
>>Foreign Relations Subcommittee hearings. Ramon Milian-Rodriguez,
>>Medellin Cartel money launderer, said that he gave money,
>>including $10 million in cocaine profits, to Felix Rodriguez
>>between 1982 & 1985. The cocaine was flown from Columbia to the
>>John Hull ranch in Costa Rica. Weapons for contras were flown to
>>the Hull ranch and cocaine was flown back on return trips. Pilot
>>Gary Betzner returned with 1000 kilo of cocaine. Pilot Michael
>>Tolliver said that he flew 25000 pounds of marijuana into
>>Homestead Air Force Base, Florida.
>>880330, In These Times, p 11. An article by Anne-christine
>>d'Adesky gives a partial list of Caribbean officials alleged to
>>have smuggled [illegal] drugs thru their respective countries.
>>From the Bahamas, Prime Minister Pindling, top customs official
>>John Rolle, and conservative political party leader Sammy L.
>>Miller. From Haiti; Defense Minister Brig. Gen. Williams
>>Regala, Army Chief Gen Henri Namphy, Chief of Narcotics Carel
>>Occel, Police Capt Gregoire Figaro, civilians Joe Namphy (brother
>>of Gen Namphy) and Alexander Paul (brother of Col Paul) were part
>>of group of Haitians who smuggled cocaine from Columbia to South
>>Florida via Bahamas and Dominican Republic. Cuba; Fidel Castro
>>and Raul Castro and several navy officials are alleged to have
>>smuggled cocaine from Columbia to Florida via Cuba. On Mar 16,
>>1988 US Attorney Leon Keller (who indicted both Noriega and Paul)
>>told two congressional subcommittees a that a recent drug seizure
>>produced evidence of official Cuban and Haitian involvement.
>>Also Jamaica, Turks and Caicos, Honduras, Mexico, and Panama.
>>880405, Honduras. The Nation, May 7, 1988, p634. Ramon Matta,
>>suspected drug kingpin and friend of several top Honduran
>>military officers, is captured by US Marshals. The Honduran DEA
>>office, closed between 1983 & 1988, is reopened.
>>880413, In These Times, April 13-19, 1988, p5. Maj Gen Richard
>>Secord is suing Leslie Cockburn for $38 million for the loss of
>>"business opportunities", such as the gun and drug smuggling by
>>the CIA in Central America.
>>880507, The Nation, p634. Here is a summary of the Bo Gritz
>>story. In 1986, Gritz went to Burma with White House blessings
>>to meet with the drug warlord Khun Sa, who supposedly had
>>information of MIAs. Khun Sa said that he wanted to end the
>>opium and heroin traffic in his territory and to expose U. S.
>>officials involved in the drug smuggling. Gritz claims that he
>>took this message to the US government and was told by Tom Harvey
>>of the National Security Council (NSC) that "there is no interest
>>here" in the Khun Sa overture. In May 87, Gritz, with Lance
>>Trimmer, a private detective, again visited Khun Sa in Burma. In
>>a recent letter to George Bush, who heads the National Narcotics
>>Border Interdiction System, Gritz maintained that Khun Sa claimed
>>that he had once engaged in narcotics transactions with Richard
>>Armitage, now Assistant Secretary of Defense, and Theodore
>>Shackley, the former director for operations at the CIA, and
>>other US officials. George Bush was head of the CIA in 1976 when
>>Khun Sa said that he was selling drugs to top CIA officials.
>>Gritz says that, strangely, nobody in the US government is
>>interested in investigating this.
>>880601, Philadelphia, PA. Seven Philadelphia PA cops have been
>>arrested with $150,000 for drug trafficking over the past two
>>years. Mutual News, WSFC. This may be the same seven involved
>>in drug trafficking in Owensboro, KY. See 870912.
>>880608. Arms broker Richard Brenneke publicly charges that
>>George Bush's office directly supervised the contra arms network
>>which was funded by Columbian drug money in association with the
>>Israeli Mossad. The Washington contact was Donald Gregg, Bush's
>>national security advisor. In These Times, Jun 8-21, 1988, p7.
>>/Is this the same Donald Gregg who in now the US Ambassador to
>>South Korea? 9101.
>>880905. Detroit, MI has at least 100 police officers under
>>investigation for ties to the drug underworld. However, Chief of
>>Police William Hart insists that His Force is free of systemic
>>corruption. Newsweek, Sep 5, 1988, p37. /Chief Hart was finally
>>arrested and charged with embezzlement of 2.5M$ from the Police
>>Department undercover narcotics fund on 910213.
>>881003. Elaine Shannon in _Desperados_ says that in June 1984,
>>Oliver North, in an effort to expose alleged links between the
>>Sandanistas and drug dealers, leaked information which exposed
>>Barry Seal who was infiltrating The Medellin [cocaine] Cartel.
>>U. S. News & World Report, Oct 3, 1988, p13.
>>881122. Two Los Angeles DEA agents are arrested for hiding money
>>in Switzerland. CNN 11:05PM. Another DEA agent, Darrell
>>[Daniel?] Garcia who bought a $500,000 home, is still at large.
>>These three agents had amassed $600,000 in drugs and laundered
>>money in the past 4 years. Two drug dealers under investigation
>>were tipped off by these Agents of Justice. CNN 3:13PM 25 Nov
>>881128. Drug agents nationwide have been staging phony drug
>>busts on their own agents for years in an effort to gain the
>>confidence of the "real" drug smugglers. CNN radio, 3:43PM,
>>quoting The Houston Chronicle. Sinsemilla Tips, V8#3p21.
>>881129. Marvin Washington, Lexington Fayette County Kentucky
>>police officer for the past eleven years, is arrested for armed
>>robbery and possession of illegal drugs. Officer Washington
>>accosted at gunpoint two restaurant employees attempting to make
>>a night bank deposit. He was also found to be in possession of
>>cocaine. KET. Lexington.
>>881201. Monitor Radio. A retired New York City policeman was
>>arrested in The Great Mafia Drug Bust.
>>881205. Special prosecutor Lawrence Walsh is investigating
>>allegations that the "Justice" Department deliberately stymied a
>>Senate inquiry into contra gun and drug smuggling in the spring
>>of 1986. U. S. News & World Report, p16.
>>890114. John Hull is arrested by Costa Rican authorities on
>>Thursday, 12 Jan 89 on charges of arms trafficking, drug
>>smuggling, and espionage. Warrants were obtained in part from
>>information from George Morales, drug smuggling pilot for the
>>CIA. Hull steadfastly claims that he is a simple farmer and is
>>not a CIA operative. His salary from the United States National
>>Security Council (NSC)is $10,000 per month. WBKY, 4:15 PM
>>/Farmer Hull has skipped bail an as of late 1990 is reported to
>>be hiding with his 20 year old female companion in Nicaragua.
>>890100. Clay County, KY. J.C. Lawson is arrested. A vendetta
>>is specifically denied by the cops. This is the fellow who had
>>the nerve to suggest that the police spend their time chasing
>>murderers and thieves, rather than pot patches. KET.
>>890130, Adelaide, Australia, Insight, p35. Detective Inspector
>>Barry Moyse was head of the police drug squad and was known for
>>his high profile attack on narcotics use. In late 1987 he was
>>convicted of trafficking in heroin he had taken from the police
>>property room.
>>890123. Newsweek, p 60. The Surgeon General's Report states
>>that the annual death toll in the United States from cigarettes
>>is 390,000. By 1992 the figure has risen to 450,000 deaths per
>>year from tobacco consumption in the US.
>>890220. Newsweek, p8. The Bush administration and a bipartisan
>>group of congressmen are quietly pressuring Costa Rica to release
>>an American farmer [sic] jailed there on drug charges. John
>>Hull, whose ranch near Nicaragua's border figured in Oliver
>>North's contra-supply network, was charged last month with
>>cocaine smuggling. The U.S. Embassy has protested his arrest,
>>and 19 legislators - including Democratic Rep. Lee Hamilton, a
>>critic of contra aid - are urging the case 'be concluded
>>promptly ... in a manner that will not complicate U.S.-Costa
>>Rican relations.'
>>890220. On a Crime in Kentucky program, it was mentioned that
>>90% of prison inmates in Kentucky are imprisoned for either drug
>>or alcohol charges. KET.
>>890225. Lexington, KY. Fayette County Kentucky Sheriff Lonas
>>Taulbee and five others are indicted on cocaine trafficking
>>charges. WSEK 11:14AM 25 Feb 89.
>>890231. WBKY, 8AM. KY News Net. Lexington, KY. Fayette County
>>Sheriff Lonas Taulbee resigns effective 14 April. He was
>>convicted and sentenced to 5 years for theft and malfeasance. He
>>is yet to be tried for conspiracy to distribute cocaine.
>>890417. The Nation, p 512. Guillermo Tabraue received $1400 per
>>week from CIA and did $75 million in marijuana and cocaine
>>business between 1976 and 1987, supposedly with the blessings of
>>the CIA.
>>890419. WFLW, 9:58AM. also ABC. The Everglades fire of about
>>two weeks ago was started by the burning of the records of a
>>Miami cop arrested for cocaine smuggling.
>>890508. The Nation, p619. "Drugs, Law Enforcement and Foreign
>>Policy", a report of the Senate Subcommittee on Narcotics,
>>Terrorism and International Operations released April 13. It
>>concludes that US knowingly used several drug traffickers in its
>>contra supply operations. Four companies owned and operated by
>>narcotics traffickers, SETCO Air, DIASCA, Frigorificos de
>>Punterenas, and Vortex were selected by State Department. John
>>Hull accused of preparing false affidavits for US Attorney Leon
>>Kellner.
>>890508. Cleveland, OH. Newsweek, p26. Arthur Feckner, drug
>>wholesaler, helped capture his supplier and 100 pounds of cocaine
>>in 1985. Feckner was then allowed by Cleveland police to sell 13
>>pounds of cocaine for $452,000 [$35/gm]. An internal police
>>inquiry had enough evidence to indict five officers. A judge
>>ruled that state law permitted police drug sales if they were
>>claimed to be in pursuit of a dealer. Present Police Chief
>>Howard Rudolf was head of narcotics department at start of
>>Feckner affair.
>>890810. WKYM. Judge Eddie Lovelace files suit against a Russell
>>County KY radio station for reporting on 24 July 89 that he was
>>suspended for 6 months for interference with the Clinton County
>>marijuana cultivation case against Clinton County Court Clerk
>>Lloyd Stockton. Believe it or not, it is illegal to mention that
>>a lawyer has been reprimanded!
>>890815. WBKY, 12:35PM. Edward O'Brien, DEA agent, was arrested
>>at Logan airport in Boston Massachusetts with 62 pounds of
>>cocaine in his suitcase. DEA Agent O'Brien is described as
>>being "high ranking and decorated", as well as a cocaine
>>smuggler. /Newsweek Aug 28, 1989. Edward, Paul, and John
>>O'Brien, brothers, were all arrested. This is the fourth DEA
>>agent arrested on drug charges this year.
>>890830. KY News Net. Captain Marion "Butch" Campbell wins! On
>>a final appeal, Judge Carl Forrester rules that evidence is
>>inadmissible for a retrial. Kentucky State Police Commissioner
>>makes a good front for cocaine smuggling.
>>890907, WTVQ. Jackie, son of [Bill Robert ?], Owsley Co, KY,
>>Judge-Executive arrested on TV for FBI & CBS for marijuana
>>cultivation.
>>890925. Insight, p 44. Democrat Rep. James A. Traficant, Jr.
>>received $108,000 in bribes from organized crime in the 1980 race
>>for Mahoning County, Ohio Sheriff. The 6th US Court of Appeals
>>sez that the bribes are taxable.
>>890928. WFLW. Clinton Co, KY. Judge Eddie Lovelace has his
>>suspension for protecting the local marijuana industry reduced
>>from 6 months to 45 days.
>>891218, Newsweek, p 30. Detroit, MI, top police officials are
>>accused by FBI of stealing more than $1 million intended for "buy
>>and bust" operations against competing drug dealers. /Similar
>>charges were also made in Sep 88 and Feb 91.
>>900118, WHAS, KNN. Christian County KY Sheriff William Dillard &
>>chief deputy & others arrested 17 Jan 90 on Federal indictment
>>for cocaine distribution & accepting bribes to protect cocaine
>>distribution after 1 year FBI investigation.
>>900226. Insight, p 37. Murder indictments are handed down for
>>Manuel Ibarra Herrera, former chief of the Mexican Federal
>>Police, and Miguel Aldana Ibarra, his deputy and former Interpol
>>director for murder and narcotics trafficking in the death of DEA
>>agent Enrique Camerena in 1985. The kidnapping and torture of
>>Camerena was to find out how US officials had learned of the ties
>>of members of then-President Miguel de la Madrid Hurtado's
>>Cabinet to drug payoffs.
>>900305. Paul Harvey. The East Wendover, UT, police chief and
>>his wife are arrested for drug trafficking.
>>900400. Acres, USA p 21. Iran paid our conspirators for part of
>>the contra arms deal with heroin & morphine.
>>900403. WDCL. Bowling Green, Warren Co, KY. Jailor Bunch & 7
>>deputies indicted on many charges including drug dealing at the
>>jail.
>>900414. WHAS. John Roger McDonald, age 22, dispatcher at
>>Bowling Green KY State Police is accused of stealing an
>>undisclosed amount of cocaine from evidence.
>>900425, KY News Net. John Roger McDonald is accused of stealing
>>200 to 300 grams of cocaine in several thefts over 5 months from
>>State Police Evidence.
>>900613, Paul Harvey. Bronx, NY cops hold a "job action" to
>>protest probes of corruption in the police department. They
>>write no parking tickets.
>>900615. WEKU. Lexington, KY Fayette Co, KY Sheriff Taulbee loses
>>appeal on theft & malfeasance and is sentenced to 5 years.
>>900616. KNN. Versailles(?), KY. Danny Allen Murphy is charged
>>with suffocating his wife in 85. Also on trial next month on
>>Federal drug charges. His occupation is given as
>>Lexington-Fayette County Police Officer.
>>900623, Western KY Univ Radio. Dillard, Christian Co, KY Sheriff
>>is convicted of cocaine trafficking and taking a $5000 bribe from
>>the Feds. Found not guilty on some other charges.
>>900717. KNN. Vine Grove, Hardin Co, KY. Police Chief Abshire
>>pleads guilty to cocaine possession.
>>900727. WSEK. Whitley Co, KY. Former Whitley County
>>Judge-Executive Archie Powers and Clifford Silers plead not
>>guilty to cultivating 849 marijuana plants in 2 plots.
>>900816. WSEK, WKYU. Eastern Kentucky. In "Operation Walking
>>Short", the FBI produces a 42 count indictment of Kentucky law
>>officers for conspiracy to extort and protect illegal drug
>>traffickers. Arrested were: John Mann, Sheriff of Lee County,
>>allegedly the master-mind, who took $38,500 in bribes from FBI
>>agents; Lester Dickerson, Sheriff of Wolfe County, Billy
>>MacIntosh, Sheriff of Owsley County; Dean Spencer, Sheriff of
>>Breathitt County; Wilson Stone, Deputy Sheriff of Wolfe County;
>>and Omer Noe, Police Chief of Beattyville. Two FBI agents
>>masqueraded as big Chicago "businessmen", in the business of
>>importing marijuana and cocaine. They got a business license to
>>air-drop and outship their products from backwoods airstrips.
>>This is supposedly the biggest [bigger than catching the Kentucky
>>State Police Commissioner doing 3/4 million dollars per week in
>>cocaine trafficking??] bust in Kentucky. Several newscasts
>>emphasized that this is no reason for good citizens to question
>>the integrity of their police; other radio stations issued an
>>appeal for their good citizens to report such activities to the
>>FBI hotline.
>>900820. KET. Lexington Police Officer Dan Murphy is on trial
>>for distribution of marijuana, and weapons charges. Judge
>>Forrester will decide if the jury should see Murphy's Jessamine
>>County fortress/plantation/home. The charges are worth 30 years.
>>900822. KET. Lexington Kentucky. Danny Allan Murphy, former
>>Lexington Kentucky Police Officer is convicted on marijuana
>>distribution and machine gun charges. He is yet to stand trial
>>for murder in Jessamine County.
>>901011, Christian Co, KY. Christian County Kentucky Sheriff
>>Dillard is sentenced to 9 years in prison for selling cocaine &
>>stealing $12,000 from the government. KNN
>>901018, PBS Frontline, "When Cops Go Bad", WGBH, Boston, MA.
>>Discussed the Miami FL case (see 7 previous entries from 24 Oct
>>86 to 19 Apr 89) of organized gangs of Miami police stealing and
>>selling boatloads of cocaine. In the Los Angeles County
>>Sheriff's Department, $1.4 million was skimmed by the
>>departmental drug squad. Approximately 30 indictments were
>>rendered, including Jim Bouden and Dan Garner. This source of
>>revenue spread from the the Los Angeles Police Department to the
>>Feds. DEA agents Daniel [Darrell?] Garcia, Wayne Countryman, and
>>John Jackson liberated 150 kilograms of heroin and sent it to New
>>York by FedEx for sale. Two have plead guilty, and the third is
>>on trial. 50% of police corruption cases in the US are drug
>>related, according to the FBI. 32 DEA agents have been the
>>target of internal investigations this year, 54 Federal agents
>>[does that include the DEA agents?], 40 State Police, and 327
>>local policemen. There are approximately 17000 local police
>>departments in the US. In Sea Girt, NJ, pop 2500, 20 local
>>people were arrested in a drug dealing ring. These included 3 of
>>the 12 police, Sgt Joseph Beaumont, Lt Robert Hindman, and Capt G
>>Calusleri. School officials don't know how to explain to the
>>children how these cops could preach their drug speech while
>>dealing at the same time. There is a Justice Dept study of
>>police corruption.
>>901022, London, KY. Lee County KY Sheriff Jonathan Mann is being
>>held without bond in the Laurel County jail. He is charged with
>>19 counts of drug trafficking and extortion, and taking $85,000
>>in payoffs from drug traffickers posing as FBI agents. He is
>>running the Sheriff's Office from jail, having appointed his wife
>>as administrator.
>>901029, WTHL. The drug trafficking trial of DEA agents Daniel
>>[Darrell?] Garcia, Wayne Countryman, and John Jackson is
>>scheduled for next month. Witness Stewart testified on videotape
>>that that for three years he sold drugs supplied by these DEA
>>agents, shared two million dollars in profits with them, and took
>>lavish vacations with their families. Witness Stewart testified
>>on videotape because he was not expected to live long enough to
>>testify in person.
>>901108, Somerset, KY, WFLW & WSEK. Ten year veteran Kentucky
>>State Police Trooper David Dick was issued a criminal summons
>>(not arrested) as the result of his superiors finding marijuana
>>less than two ounces in the trunk of his cruiser Sunday. He
>>claimed that this was leftover from an arrest and that he had
>>forgotten about it. On Monday he resigned, according to Pulaski
>>County attorney Fred Neikirk. On Thursday he pleaded guilty, was
>>fined $25, and immediately had his conviction voided. His
>>attorney was Larry Whittaker. Trooper Dick has been rumored to
>>be involved in marijuana production and marketing for several
>>years. See 861126.
>>901207, Lexington, KY. Former Fayette County Kentucky Sheriff
>>Lonas Taulbee loses an appeal on conspiracy to traffic in
>>cocaine. His grounds were that since he got caught before he was
>>actually able to have the cocaine planted in the car of his Chief
>>Deputy, he obviously was not distributing cocaine. Appeals on
>>the charges of theft, misfeasance, and malfeasance for stealing
>>from his office also failed.
>>910108~, St Regis, suburb of Louisville, KY, KET? St Regis
>>policeman Bersot is accused of planting drugs & guns on David
>>Trigley(sp?). Trigley's crime was to date the cop's ex-wife.
>>Captain Eppeley deplored the accusation.
>>910213, Detroit, MI, NPR. William Hart, the Police Chief of
>>Detroit, MI, is accused of embezzlement and tax fraud for
>>diverting 2.5M$ from the Police Department undercover narcotics
>>fund to his own private businesses. Chief Hart is sentenced to
>>suspension with pay. The Mayor deplores this racist attack on
>>the Black community. /Similar charges have previously been made
>>in Sep 88 and Dec 89. On 920827 they made it stick, 10 years'
>>worth.
>>910306, IN, KET. Barbara Grier (or is it in Grier, IN?) is
>>listed in serious condition after the cops invaded her house to
>>arrest her boyfriend. The shot was meant for the dog, but
>>missed, hitting her in the stomach.
>>910522, Detroit, MI, Paul Harvey. 10 cops and the niece of the
>>mayor are arrested in an Detroit, MI, FBI sting. They thought
>>that they were taking payoffs from the real drug dealers.
>>910530, Cleveland, OH, KYnet. 30 police officials are caught in
>>a FBI sting on drugs and gambling. This was reported by a
>>Cleveland TV station, but no officials will make any official
>>statements. MacNeil/Lehrer said that 47 cops including 30
>>current police officers, 4 former officers, and 13 others
>>provided security services for illegal gambling and incidentally
>>drug distribution, over two years.
>>910619, Frankfort, KY, KET. 5 marijuana plants were found
>>growing in an apartment owned by KY drug czar Faulkner. This
>>time they believed the landlord when he said that he did not know
>>of this activity and had no way of knowing. 60 more plants were
>>found in another Frankfort indoor harvest.
>>910712, London, KY, KYnet. In the trial of Jonathan Mann etc,
>>evidence showed that informant David Richardson was paid $77,000
>>by the FBI for salary & expenses. His previous career was a
>>marijuana dealer.
>>910716, London, KY, WSFC. John Quinn (or maybe Flynn?) of
>>Lebanon, OH is Jonathan Mann's attorney. Mann has had a
>>jailhouse conversion, and now has found God, who should forgive
>>all his sins. Mann gave an interview to a Lexington newspaper,
>>but this was declared insufficient to grant a mistrial.
>>910718, London, KY, WKYM. In the Mann et al trial, David
>>Richardson is alleged to have killed fellow agents Doug & Brenda
>>(Davidson?). But he passed a FBI lie detector test, and that's
>>that. These allegations are adjudged to be irrelevant and not
>>admissible as evidence.
>>910719, Nicholasville, KY, KYnet. Former Lexington cop Murphy
>>pleaded guilty to suffocating his wife and was given 20 years.
>>910731, London, KY, WSEK. Jonathan Mann etc trial prosecution
>>finished. James [not David] Richardson of Owsley Co given as the
>>marijuana dealer who cooperated with the FBI. The judge is
>>Siler.
>>910816, London, KY, KNN. Late today a verdict was delivered in
>>the drug conspiracy trial of Lee County Sheriff Jonathan Mann and
>>Associates. I think that 5 of 6 were convicted on one count of
>>conspiracy to distribute cocaine, but reports are very unclear.
>>Sheriff Dean Spencer of Breathitt Co was the odd man. Five were
>>convicted of conspiracy of extortion, and three were convicted of
>>conspiracy to distribute cocaine.
>>910821, Gridley, IL, Paul Harvey News. Judge Mark Dalton was
>>found by Federal Drug Agents to have a commercial marijuana
>>garden in his back yard.
>>910826, Laurel Co, KY, WSEK. The Robert Foley, age 56[?], of
>>Harlan, alleged to have recently killed two brothers (& Harry
>>Lynn Vaughn) and dumped their bodies into Sinking Creek is a FBI
>>informant, according to an Ohio lawyer. A Federal judge issues a
>>gag order on the subject. Foley's father and wife are arrested
>>and alleged to have intimidated witnesses.
>>911029, Laurel Co, KY, KNN. Robert Foley, 39, is arrested &
>>pleads not guilty for the murder of four people found entombed in
>>an abandoned septic tank since 1989. This was on a farm at Bald
>>Rock, Laurel Co, owned by his father, and formerly owned by
>>___________, also alleged to have been murdered by Foley.
>>Victims include Kimberly Bowersods (?) 20, of Ohio; and Calvin
>>Reynolds, 22, of Laurel Co, KY. See also 910826 for rumor that
>>Foley is a FBI protected informant. Note that Foley had aged -17
>>years during this unfortunate incident. See 940404.
>>911101, Laurel Co, KY, WSEK. Ron Pool, FBI handler for
>>"Operation Walking Short", the Jonathan Mann case, attempted to
>>influence Judge Watson to release Robert Foley on murder charges.
>>920130, Laurel Co, KY, WSEK. Robert Foley was being handled by
>>FBI agent Ron Poole at the marijuana arrest of Larry Vaughn.
>>910924, Lexington, KY, KNN. Gregory Drake Wahl, a Fayette County
>>Sheriff's Deputy, was arrested Monday for selling 1/4 pound of
>>marijuana within 1000 feet of a school.
>>911002, Clinton Co, KY, WMKZ, WKYM. Following a two year
>>undercover investigation, the FBI arrested David M Stonecipher,
>>47; John Henry Cravens, 45; Anthony "Tony" Seratto, 39; and was
>>attempting to find Paul A Brown; on charges of conspiracy to
>>distribute marijuana. The break came with a $14K sale by
>>Stonecipher the previous Tuesday & Wednesday to a KSP agent.
>>This Duvall Valley operation was a marijuana clearinghouse,
>>exporting to GA, OH, IL. The FBI does not usually investigate
>>mid-level drug dealers, but this was an exception. Capt Gary
>>Lusher of the Bowling Green SP and Terry O'Connor of the FBI
>>publicized the bust. Seratto is an 14 year veteran of the Albany
>>police, and was charged with use of a firearm in a drug offense,
>>an well as conspiracy.
>>911030, Breathitt Co, KY, KNN. After a two month investigation,
>>Mike Goff of the Kentucky National Guard working in The
>>Governor's Marijuana Task Force, is among 31 arrested for
>>marijuana trafficking.
>>920504, The Nation, Alexander Cockburn, p582. A drug & gun
>>trafficking operation thru Mena in western Arkansas was protected
>>by Federal officials. A 1983 IRS drug smuggling & money
>>laundering investigation by the Arkansas State Police, prime
>>investigator Russell Welch, uncovered CIA connections, and was
>>warned off by the FBI. Arkansas state agencies brokered loans to
>>associated companies and interfered with investigations. Terry
>>Reed was a pilot & contra trainer.
>>920509, Presidio Co, CA, Paul Harvey. The former Presidio County
>>CA Sheriff is busted for cocaine trafficking. But there is no
>>Presidio County in California. But Sheriff Rick Thompson of
>>Presidio County, Texas, and his business partner Robert Chambers
>>(a Senator?) have been sentenced to life in prison for cocaine
>>smuggling according to Frontline, "What Happened to the Drug
>>War?", 930206. I was really impressed by Sheriff Thompson's
>>television adv for his tollfree drug smuggler hotline, 800
>>BE-ALERT. Apparently they were caught when another business
>>partner reported them to the real cops.
>>920617, Florida, KNN. Florida Sheriffs have been shaking down
>>people for multi millions of dollars under the guise of drug
>>forfeiture. The people were never charged, but they never
>>complained either. The rat got out of the bag when a woman was
>>relieved of her Federal hurricane relief check. Rumors have it
>>that this is a common practice everywhere.
>>920806, Kentucky, WMKZ. "Operation Walking Short" continues.
>>Former Lee County Sheriff Jonathan Mann is accused of taking
>>$40,000 in payoffs from phony drug dealers. The Feds are
>>confiscating $132,000 in property as drug profits. Meanwhile,
>>Sheriff Mann is serving 24 years 4 months in prison. Wolfe
>>County Deputy Sheriff Wilson Stone was sentenced to 10 years 1
>>month.
>>920807, Nashville, TN, WKYU. Circuit Court Judge Thomas Brothers
>>is indicted at Nashville TN for his part in laundering
>>$1.3million in cocaine profits into several corporations. Also
>>indicted are Russell Brothers, nephew of The Judge, and G Thomas
>>Newell, their attorney.
>>920809, Clay Co, KNN. Marijuana claims another young victim.
>>Melissa K Cotton (20) of Patterson, New Jersey, a Ft Campbell
>>soldier, was killed in Clay Co, KY, as part of The Governor's
>>Marijuana Task Force (GMTF). She was a passenger in a fuel
>>tanker truck which ran off the road. The shoulder collapsed, and
>>the truck rolled down a hill and into a tree. The truck was in
>>the area supporting helicopters searching for marijuana. The
>>claim was made on several newscasts that "The Army is not heavily
>>involved in marijuana eradication". The GMTF score so far this
>>year is about a half million plants.
>>920825, Floyd Co, KY, KNN. Floyd County Kentucky Deputy Sheriff
>>Larry Newsome (45) plea bargains guilty to one of five counts of
>>drug trafficking. He was charged with selling pills to an
>>undercover agent. This must have happened a while ago, since a
>>trial was scheduled for tomorrow.
>>920826, Louisville, KY, many including KNN, KET, WLKY, WAVE,
>>WHAS. Four law officers are arrested on charges of violating the
>>civil rights of Ricky Lee Pardu by planting cocaine and a
>>silenced pistol in his car. Jefferson County Deputy Sheriff Ron
>>Pike was the mastermind of the operation. Saint Regis Police
>>Captain Gary Epperly was the operations chief, and Saint Regis
>>Policeman James Goodman his assistant. They were hired by
>>Jefferson County Deputy Sheriff George Tingley, who supplied the
>>cocaine. Pardu was arrested by Epperly and Goodman on 1 Nov 90.
>>David Tingley, Charles Bookout, and John Bursoe were also
>>involved. Epperly and Goodman were also questioned in the murder
>>of State Policeman Johnny Eddrington with his own gun in Laurel
>>County, but have not been charged. Pardu was believed because he
>>was an informant passing information on activities of Special
>>Security Services, an operation of the officers located on the
>>Rest Haven Cemetery property. See 930225, 930723
>>920827, Detroit, MI, Paul Harvey. Detroit Police Chief William
>>Hart is sentenced to 10 years for embezzlement and tax evasion
>>for stealing millions of dollars which was supposed to have been
>>used for undercover drug buys.
>>920829, Clinton Co, KY, KNN. Anthony Seratto is sentenced to 70
>>months for marijuana trafficking. Not mentioned was his
>>occupation (Albany city cop) or the disposition of charges of use
>>of a firearm in the commission of conspiracy to traffic in
>>illegal drugs.
>>921113, Erlanger, KY, KNN & WSEK. Inspector David Woods (42) of
>>the Erlanger, KY (suburb of Cincinnati, OH) police was arrested
>>for selling confiscated drugs. The East Kentucky Task Force of
>>DEA, FBI, KSP, ETC, charged Inspector Woods with drug trafficking
>>and theft of government property after a five to six month
>>investigation.
>>921123, Whitesburg, Letcher Co, KY, WKYU, KNN. Circuit Court
>>Judge Larry Collins was arrested on five bribery charges for
>>taking $7,000 and some marijuana in return for protection of a
>>marijuana dealer. This came after a one year Grand Jury
>>investigation. When Judge Collins took over his office in
>>January 92, he immediately dismissed a Grand Jury which was
>>investigating corruption.
>>921212, Louisville, KY, KNN. A drug sweep in Louisville, KY,
>>catches 24 drug dealers, including a Jefferson County Deputy
>>Sheriff. Deputy Gerald LaMotte Gray was charged with two counts
>>of marijuana trafficking. Also paraquat has just been declared
>>safe and efficacious for use on homegrown marijuana.
>>921218, Comment on Kentucky, KET. ? Estep of Lexington
>>Herald-Leader says that the value of the marijuana crop has been
>>forced below the value of the tobacco crop in Kentucky this year,
>>which is 900M$. During the 80's, marijuana was usually of more
>>value than tobacco, 1B$ in some years. Most is produced in
>>southeastern Kentucky, Clay, Leslie, Laurel, Harlan, Whitley,
>>McCreary, Wayne, Clinton counties. Prices this year are $1200
>>to $2600 per pound. Judge Collins has been suspended with pay
>>after continuing to hold court after his arrest on bribery
>>charges. Al Smith speculates as how the drug trade has caused a
>>lot of corruption.
>>921226, Russell Co, KY, WSEK. Matthew Gene Roy, Russell Co KY
>>Magistrate is arrested in Lake Charles, LA, for marijuana
>>trafficking in a "routine traffic stop".
>>921230, Eastern KY, KNN. The 6th Circuit Court of Appeals upheld
>>the "Operation Walking Short" convictions of five Eastern
>>Kentucky cops on assorted drug trafficking conspiracy charges.
>>It does admit that maybe the punishment of Omer Noe was too
>>harsh.
>>930127, Miami, FL, WSFC (ABC?). Three customs agents and an FBI
>>agent are charged with drug trafficking, bribery, and money
>>laundering in Miami, FL.
>>930128, Lexington, KY, KET. Former Lexington Police Officer
>>Danny Murphy has his charges of use of a machine gun while drug
>>trafficking overturned in the 6th Circuit Court of Appeals in
>>Cincinnati, OH. He still is in prison for murdering his wife.
>>In a personal conversation with DPB at Rainbow 93, an individual
>>volunteered that his brother-in-law was one of the fronts for
>>Murphy, holding title to Murphy's estate in alternate years.
>>Murphy beat the machine gun rap because the gun was in the attic
>>and the pot was in a freezer in the basement, this being a
>>sufficient distance that he could not be using his machine gun in
>>perpetration of a drug crime.
>>930201. Ex-Miami cop Armando Garcia is on the FBI most-wanted
>>list. This may be one of the Miami's Finest who was given a
>>mistrial for robbing and killing cocaine smugglers. See 870202.
>>930209, Beattyville, Lee Co, KY, WMKZ. Beattyville Chief of
>>Police Omer Noe of Lee County, KY, is resentenced to 12 years 7
>>months in prison for his part in in the "Operation Walking Short"
>>drug smuggling. The Appeals judge was Eugene Siler, who had
>>originally tried Noe. Not that Noe doesn't deserve another 12
>>consecutive life sentences for hypocrisy, but has a judge ever
>>overturned himself on appeal?
>>930225, Louisville, KY, KNN. Jefferson County policeman Ron Pike
>>is convicted of possession of two automatic weapons. No mention
>>of any connection with his planting drugs and weapons on Ricky
>>Lee Pardu who was informing on their security service. See
>>920826, 930723
>>930318, Lexington, KY, KET. Former Lexington, KY, police officer
>>Danny Murphy is convicted of possession of a pistol while
>>marijuana trafficking and sentenced to five years in prison. He
>>was formerly acquitted of possession of a machine gun while
>>engaged in his moonlight business. See 930128 & 910719 &
>>900822 & 900820 & 900816 & 900608.
>>930120, St Regis, KY, WKYU. St Regis Police Captain Epperly
>>pleads guilty to planting drugs to facilitate the arrest of an
>>inconvenient criminal. It is unclear whether this concerns the
>>case of David Trigley or that of Ricky Pardu. See 920826 &
>>910108.
>>930409, Lexington, KY, KET. Former (fired in 1979 for
>>insubordination after 8 years of service) Lexington Police
>>Officer Bill Canan is arrested by Federal Marshals on charges of
>>drug trafficking and intimidation of a witness. Officer Canan
>>allegedly bought 24 oz of cocaine and then threatened to kill
>>Robert Scott, his supplier turned Federal Witness, if he
>>squealed. This is part of an investigation ongoing for 1.5
>>years. Police Chief Walsh vows that he is "finally gonna clean
>>up the Good Ole Boy Network" [his words]. See 850912, 930716.
>>930416, Lexington, KY, WSEK. Ella Flynn, mother of Melanie Flynn
>>who was disappeared under mysterious circumstances in 1977,
>>claims police ineptitude & indifference. Mrs Flynn claims that
>>she gave police many details of names, places, times, etc, which
>>were ignored. She also claims that part of the case file was
>>disappeared. Chief Walsh denies all these false allegations.
>>This re-surfaced upon the arrest of Bill Canan former Lexington
>>Police Officer on cocaine trafficking charges. Rumors at the
>>time of Melanie Flynn's disappearance were that she knew too much
>>about the Lexington Police drug trafficking. See 850912, 870112,
>>871123, 890225, 900820, 930409, Sally Denton, The Bluegrass
>>Conspiracy, Doubleday, 1990.
>>930416, Covington, KY, WSEK. Undercover Narcotics Officer Randy
>>Sebastian is charged with perjury for lying to obtain a search
>>warrant on Dr Patricia Canfield. Officer Sebastian resigned when
>>confronted.
>>930421, Lexington, KY, KET. Former Lexington Kentucky Police
>>Officer Bill Canan is indicted on 14 counts. Charges include
>>drug possession and distribution in '88, possession of a fake DEA
>>ID, and possession of a pen gun and machine gun. His lawyer is
>>Fred Peters. One of the character witnesses at the bail hearing
>>was the same as for Danny Murphy. (See 900608, 900816, 900820,
>>900822, 910719, 930128, 930318). The Judge had enuf sense not to
>>pay any attention to him this time. Officer Canan is ajudged to
>>be a danger to the community and an escape risk.
>>930528, Christian County, KY, WKYU. Sheriff William Dillard has
>>his conviction overturned on appeal. Thus he really did not
>>partake in cocaine trafficking or take bribes for protection of
>>the drug industry in his dominion. See 900118, 900823, 901011.
>>930624, Paducah, KY, WKYU. Captain William Gorden of the Narco
>>Squad is fired for recording and reporting corruption in the drug
>>unit by city manager Pennington. A whistle blower lawsuit is
>>filed.
>>930626, Catletsburg, KY, WMKZ. Timothy Woods (39), a Kentucky
>>Department of Forestry Ranger, is arrested for cultivation of
>>marijuana, tending a patch on a hillside, while on duty in
>>uniform.
>>930716, Lexington, KY, KET. Former Lexington Police Officer and
>>accused cocaine trafficker Bill Canan has his 13 counts (didn't
>>it used to be 14 counts?) dropped to 6 counts. Apparently he is
>>still charged with threatening to kill a confidential informant.
>>See 850912, 930409
>>930722, Paducah, KY, WSEK. The Western Kentucky Narcotics Unit
>>"needs to restore credibility", and be moved out of Paducah city
>>hall. The corruption ridden operation was funded by $220K in
>>state money and $73K in local taxpayer extortions.
>>930723, Louisville, KY, WHAS-KET. Louisville, KY, police
>>officers Ron Pike and James Goodman are convicted of planting
>>cocaine on a Federal informant, George [wasn't it Ricky Lee?]
>>Pardu. George Tingley was found not guilty. See 920826, 930225
>>930803, Kentucky, KNN? Just a piece of a story about someone
>>agreeing to resign from the State Police in face of corruption
>>charges.
>>930806, Harlan Co, KY, WMKZ. Howard Taylor, Harlan County
>>Kentucky Jailor, is accused of stealing two pounds of marijuana
>>from the Sheriff's evidence room.
>>930824, KY, WKYU. An outfit called "Kentuckians for Freedom,
>>Inc" has been formed to combat militarization of The War on
>>Marijuana. Also, Gary Shepherd, victim of The War, was given an
>>address of Brodhead, not Mt Vernon.
>>930824, Whitesburg, KY, KNN. Letcher County Circuit Court Judge
>>Larry Collins pleads guilty to bribery for extorting drugs and
>>money from James Braddock. Several other charges are dropped.
>>930825, New York City, Paul Harvey. Calling themselves The
>>Morgue Boys (their meeting place was in an old morgue), 35 of New
>>York City's Finest preyed on drug dealers, robbing them of
>>cocaine, guns and money.
>>930917, Louisville, Jefferson Co, KY, many. Jim Greene, former
>>High Sheriff of Jefferson County, Kentucky, goes for a six month
>>vacation at Maxwell AFB (AL?) for tax evasion. Also $128,000
>>fine. He seemed bitter about it, complaining that he had made a
>>deal for no prison time. He declared that, "My debt to society
>>will be completely paid after this six months." This contradicts
>>the three year probation. All they could make stick to Al Capone
>>was tax evasion, too.
>>931019, London, KY, WSEK. Former Lexington, KY, Police Officer
>>Bill Canan's trial started on 12 Oct. Today he took the witness
>>stand and swore that he had never engaged in the trafficking of
>>cocaine!! More to come, I expect. See 850912, 930409, 930716.
>>He was eventually convicted on the cocaine trafficking and
>>witness intimidation charges & not guilty on the weapons charge.
>>931104, Kentucky, KET-WAVE. Joseph Shawn Kelley and three other
>>National Guard members of GMTF plead guilty to padding their
>>expense accounts in last summer's War on Drugs.
>>931108, Evansville, IN, WKYU. A trial starts today at
>>Vanderburgh Circuit Court for Richard Witlow (38), an Evansville,
>>IN, narcotics agent. Witlow is charged with attempted bribery,
>>attempted theft, and theft. Witlow solicited $100,000 to
>>disappear evidence from Harris Roach, father of Tocio Roach, who
>>was convicted of cocaine trafficking along with his wife. The
>>FBI was present at the cash pickup. Witlow is also accused of
>>stealing $6500, a semiautomatic pistol, and a gold bracelet while
>>searching the home of Edward Cooper.
>>931129, USN&WR, p37. "At play in the fields of the spies". A
>>somewhat confusing story about a CIA operation in Caracas. CIA
>>case officer Mark McFarlin cooperated with Gen Ramo'n Guille'n
>>Da'vila, the head of the National Guard antinarcotics unit.
>>Guille'n told DEA & CIA officials in Nov 1991 that he had
>>cooperated with two "unauthorized" shipments of cocaine to the
>>United States. The 940704 USN&WR p 41 reports this as "knowingly
>>allowing several shipments of cocaine from Venezuela to the
>>United States."
>>931215, ???, Paul Harvey. Some cops somewhere got caught
>>stealing money from drug dealers. Chief Kelley declares that he
>>will root out corruption.
>>931216, Lexington, KY, WSEK. Lexington Police Officer Bill Canan
>>has his convictions on cocaine trafficking, intimidation of
>>witnesses, and carrying a false DEA badge upheld.
>>931228, NYC, NY, NPR. Judge Milton Mullins (sp) Commission
>>releases a preliminary report on New York City Police corruption,
>>drug trafficking, police brutality, etc. Judge Clean Hand
>>decries the "Blue wall of silence".
>>940104, Lexington, KY, KEY. Horrace Inman, 15 year veteran of
>>the Lexington Police Force, is charged with felony possession of
>>cocaine. The Police Department has no further comment.
>>940202, San Juan, Puerto Rico, "FBI This Week" (radio spot).
>>Victor Zapata was arrested in Puerto Rico. The FBI claims to
>>have been surveilling Victor Zapata for three years. Armando
>>Garcia was arrested about two weeks ago in Columbia. These are
>>ex Miami Police Officers wanted for racketeering, corruption, and
>>conspiracy to traffic in cocaine. Garcia was on the prestigious
>>FBI 10 Most Wanted List. No mention of assisting the suicide of
>>drug smugglers. See 861024, 870207, 880105.
>>940222, Beattyville, Lee Co, KY, WKYU, WSEK. Lee County Sheriff
>>Douglas Brandenburg was indicted by a Federal Grand Jury last
>>Friday on charges of conspiracy to distribute hundreds of pounds
>>of Mexican and domestic marijuana. Their market was southeastern
>>and eastern United States. 25 others were also arrested, tho no
>>names were given. As of 22 Feb, Sheriff Brandenburg was being
>>held without bond. The Federal investigation has been ongoing
>>since Sheriff Mann was caught. See 940404.
>>940222, CIA Headquarters, MacNeil-Lehrer, KET. 940310, WSJ.
>>Aldrich Ames and his wife Maria are arrested on charges of being
>>Soviet spies in the CIA. Ames was head of the CIA narcotics
>>intelligence for the Black Sea countries. Some think that the
>>cash ($2.5 million at last count) did not all come from the
>>Soviet KGB.
>>940223, Beattyville, Lee Co, KY, WSEK. Sheriff Brandenburg is
>>released on $25,000 bail on drug conspiracy charges. Strangely,
>>the charges are now cocaine trafficking.
>>940312, Hazard, KY, WSEK. Kentucky State Police Narcotic Officer
>>Mark Lopez is indicted on five charges of forgery. What he
>>forged was another officer's signature on reports on how he used
>>money which was supposed to be used for undercover drug buys. He
>>was also reprimanded for taking home ("I didn't steal it!
>>Honest!!") vehicles seized in drug raids.
>>940317, Philadelphia, PA, AP. Two FBI agents are wounded, but
>>they killed two criminals and wounded two others in a drug raid
>>in Philadelphia, PA.
>>940317, WV?, WSEK. Over 70 criminals are having their cases
>>reinvestigated after eight years because a State Police
>>Forensics "Expert" falsified the evidence.
>>940318, Middlesboro, KY, KNN, WKYU, WSEK. Two Middlesboro, KY,
>>city police and another former policeman are among eight charged
>>with drug trafficking. This is the result of a FBI sting called
>>"Operation Broken Shield". The investigation started October
>>92. Steeley Arlis Barnett and Garrett Russell are the greedy
>>cops. Their business included OH, PA, and TN as well as
>>Kentucky. 940401, WSEK. The FBI had wiretapped the home phone
>>of Officer Barnett.
>>940326, Dorchester, Boston, MA, CNN. Hazaline Wiliams, a 75 year
>>old retired minister died under the attentions of 13 narcotics
>>agents who raided his home. No drugs were found. It is unknown
>>what merited this attention.
>>940326, Miami, FL, CNN. Renee De Lacoma, a DEA agent who busted
>>Manuel Noriega has been convicted of keeping $250,000 for
>>himself.
>>940328, Boston, MA, NPR. Rev Williams was handcuffed and thrown
>>to the floor. This was considered necessary, even tho he was a
>>frail 75 year old. After ransacking his apartment and finding no
>>drugs, it was noticed that the perpetrator had died choking on
>>his own vomit. William's crime was to have his address confused
>>with that of a drug dealer fingered by a confidential informant.
>>The police have apologized to his widow, but maintain that
>>because their informant was right twice before, they were within
>>their rights. They even said that this shows just how dangerous
>>drugs are to the community!
>>940404, Madison Co, KY, KET. Twice convicted murderer and
>>sometimes FBI Confidential Informant Robert Foley (37) [still
>>37?] is on trial (moved to Madison Co) for the murder of four
>>more persons in 89. [So that's before the Vaughn murders, &
>>while he was working for the FBI?] Three bodies from Van Wert,
>>Ohio, Kimberley Bowersocks (20), Lillian Cantini (26), and Jerry
>>McMillan (36) and one from Laurel Co, KY, Calvin Reynolds (22)
>>were found in the septic tank on a burnt-out farm near Baldrock
>>in western Laurel County, KY. On September of 93, Foley was
>>convicted of murder for disposing of two other persons who had
>>become inconvenient to his operations. He was also earlier
>>convicted in a single murder. See 911029
>>940404, Beattyville, Lee Co, KY, KET. Irvine Shouse (32), a
>>prospective witness to the theft of pot from the Lee Co jail has
>>unexpectedly become dead. No other reason for his demise was
>>apparent. Sheriff Brandenburg is out on bond on charges of
>>conspiracy to traffic in drugs. See 940222.
>>940411, Mt Vernon, KY, KNN. It has been determined by a county
>>jury that Gary Shepherd forced the confrontation with GMTF,
>>justifying his execution.
>>940415, Harlem, NYC, NY, Paul Harvey. Twelve cops were caught in
>>a sting operation. Mostly night shift officers were buying and
>>selling drugs and guns. One Officer was caught on video tape
>>buying a kilogram of cocaine for $10,000.
>>940420, Mena, AR, WSJ. "On the Mena Trail" by Edward Jay
>>Epstein. CBS News recently focused two segments of "Eye on
>>America" on Mena, AR. 1) In Reagan years, local airstrips were
>>used to supply Contras. Supposedly Lt-Col Oliver North
>>supervised the operations. 2) Reputedly cocaine was brought back
>>on return trips, over 20 tons. Barry Seal was a pilot and
>>government informant. 3) Money laundering of $9 million per
>>week. 4) The strange lack of interest in the foregoing by the
>>"Justice" Department. _Compromised: Clinton, Bush and the CIA_
>>by Terry Reed and John Cummings reports on the alleged
>>conspiracy.
>>940429, Barbourville, Knox Co, KY, KNN. Senator Tom O'Dell
>>Smith's conviction is upheld for solicitation of a $10,000 bribe
>>for his efforts to reduce the sentence of a drug dealer. Senator
>>Smith offered his services to the wife of the unfortunate
>>citizen.
>>940504, Lee Co, KY, KNN. Townsend (Sheriff? Chief of Police?)
>>suspended following the strange death of drug dealer in Lexington
>>who had implied involvement with the disappearance of marijuana
>>from evidence.
>>940504, Louisville, KY, KNN. There is an investigation of police
>>drug tactics as a result of the attack on a black police officer
>>mistaken for a drug dealer a couple weeks ago.
>>940505, Leslie Co, KY, KET. Deputy Sheriff Lyn Doyle Parr and
>>Roger Wells were sentenced for protecting marijuana dealers.
>>940506, Middlesboro, KY, KET. Middlesboro Policeman Garrett Lee
>>Russell was given a postponement of his trial for running a
>>multi-state marijuana trafficking ring.
>>940515, West Harlem, New York City, National Public Radio, All
>>Things Considered, Jim Zorowley (sp?). The latest New York City
>>cop scandal is 14 cops in the 30th precinct arrested and more to
>>go for robbing drug dealers, shooting a man in custody, etc. The
>>Knapp (sp?) Commission investigated systemic corruption,
>>especially in the narcotics business. Also a Mallen (sp?)
>>Commission last October. A "Blue Wall of Silence" was found
>>where officers lied to protect each other. Also referenced was
>>the 77th precinct in Brooklyn where in 86, 12 cops were stealing
>>and selling drugs.
>>940518, Thailand, Paul Harvey. Ten politicians, including six
>>present members of Parliament, are accused of drug dealing.
>>940601, Middlesboro, KY, KNN. Middlesboro Police Officer James
>>Patterson pleads guilty to cocaine trafficking. Sentencing is
>>scheduled for August.
>>940604, Louisville, KY, KNN. FBI Agent Withers is accused of
>>heroin trafficking. He reputedly stole 100 pounds of heroin from
>>the evidence room and sold it to dealers who were under FBI
>>surveillance. Solicitations were by telephone and mail, and
>>payment was to various Post Office boxes. Much of the evidence
>>was found in a relative's home in Louisville, KY.
>>940610, Beattyville, Lee County, KY, KET? Sheriff Brandenburg is
>>real careful when he busts 123 marijuana plants. He is under
>>indictment for trafficking in marijuana confiscated last year.
>>940614, Hazard, KY, WKYU, KNN. A internal investigation hearing
>>in Frankfort was indefinitely postponed for another of Kentucky's
>>Finest yesterday. Hazard Post Kentucky State Police Officer Mark
>>Lopez (28) is accused of stealing $2000 [not clear if of or in
>>addition to] marijuana from evidence and threatening to kill an
>>informant. WSEK says that an informant got $450, but Officer
>>Lopez claimed $2475 in his report. No mention of how much
>>marijuana he scored.
>>940621, Louisville, KY, WHAS-KET. Louisville Police Officer
>>George Bell is busted for cocaine possession.
>>940628, Beattyville, KY, Kentucky Tonight. Beattyville Police
>>Chief Townsend is finally fired after being on suspension with
>>pay since May. The fate of the 16,000 marijuana plants which
>>were disappeared under his care is still unknown.
>>940707, New York City, NY, NPR. The (Judge Jim) Mollen (sp)
>>Commission Report has been released documenting years of highly
>>organized police corruption. Gangs of Our Finest rushed to crime
>>scenes to collect the booty. They also used police equipment to
>>break and enter and burglarize. They protected narcotics
>>dealers, stole and resold narcotics and handguns (New York has a
>>"Sullivan Law" prohibiting private ownership of handguns). When
>>investigated, they lied and perjured. Honest(?) police and
>>supervisors chose to ignore this. Three former Police
>>Commissioners, including present National Drug Czar Lee Brown,
>>"showed a willful blindness to corruption". The extent of this
>>corruption is unknown, but "everywhere we looked for it, we found
>>it". Suggestions on cleaning up NYC Police are hotly contested
>>by the department.
>>940712, Eastern Kentucky, WKYU, WMKZ. An unnamed Eastern
>>Kentucky man (25) pleaded guilty to selling marijuana within 1000
>>yards of a school in the Mexican dilution connection. He was
>>sentenced to 8 months in jail. The real target is Lee County
>>Sheriff Douglas Brandenburg.
>>940727, Lexington & Beattyville, KY, WSEK. Deceased drug dealer
>>Irvine Shouse (32) died 03 Apr 94 of acute cocaine and diamulid
>>(sp?) (a strong cancer painkiller) poisoning. No fowl [sick]
>>play is suspected! Shouse claimed that Beattyville Police Chief
>>Townsend tried to sell him part of the 1600 marijuana plants
>>which were disappeared from evidence and mysteriously reappeared
>>in his car trunk, but didn't live long enough to tell that to a
>>jury.
>>940804, Middlesboro, KY, KNN. Former Middlesboro Police Chief
>>Steeley Barnett and sidekick Gerald Pratt, superintendent of the
>>streets department now want to plead guilty to federal drug
>>trafficking charges.
>>940805, Jefferson Co, Louisville, KY, KNN. The Grand Jury is
>>ready to indict 50 jailors and employees of the Jefferson KY
>>County jail on charges of drug smuggling within the jail.
>>940906, Pikeville, KY, WKYU. The trial of Lee County, KY,
>>Sheriff Douglas Brandenburg is scheduled to start today in
>>Pikeville. Sheriff Brandenburg is accused of importing cheap
>>Mexican marijuana to adulterate his higher quality domestic
>>product.
>>940907, Pikeville, KY, KNN. Lee County Sheriff Douglas
>>Brandenburg is said to have taken payments of "thousand of
>>dollars per month" to protect the drug operations in his county,
>>starting shortly after he was elected and ending in June 94 as
>>his operation was taken down by federal action.
>>940909, Pikeville, KY, WKYU. Three more codefendants plead
>>guilty in the Lee County Sheriff Douglas Brandenburg marijuana
>>adulteration trial.
>>940909, Pikeville, KY, KNN. Lee County Sheriff Douglas
>>Brandenburg is given a mistrial. The reason given is that his
>>co-conspirators have all plead guilty, and it looks bad for him.
>>940912, London, KY, KNN, WSEK. The drug trial of Middlesboro
>>Officer Garrett Lee Russell starts today. He is accused of three
>>counts of dealing in cocaine, marijuana, and pain killers, 1
>>count of possession, 2 of use of a firearm in the commission of
>>drug dealing. He was arrested in March in "Operation Broken
>>Shield", after a 20 month investigation. He is accused of also
>>being a USER, using, dealing and letting his customers use in his
>>cruiser. All of his co-conspirators have pleaded guilty , but
>>this apparently is not sufficient for a mere city cop to be given
>>a mistrial.
>>940916, London, KY, WSEK. Middlesboro City Police Officer
>>Garrett Lee Russell claims that FBI Informant Benny Meyers gave
>>him free cocaine, and then demanded that Orificer Russell supply
>>him with other drugs. He carried a firearm during these drug
>>transactions because it was part of his uniform.
>>940916, London, KY, WKYM. Middlesboro Kentucky City Police
>>Officer Garrett Lee Russell is convicted of drug dealing charges,
>>but not of the use of a firearm in the commission of a drug crime
>>charges.
>>941103, This file distributed to Dan Drumm <ro...@hemp.uwec.edu>
>>Recommended reading:
>>Susan Adler, _Wheeling and Dealing_. Univ of Colorado at Boulder
>>study of drug entrepreneurs in southern California. The Nation,
>>V249, p341.
>>Association of the Bar of the City of New York, "A Wiser Course:
>>Ending Drug Prohibition".
>>Christic Institute, _Inside the Shadow Government_, The Christic
>>Institute, 1324 North Capitol St NW, Wash, DC 20002.
>>202/797-8106 15.00 Ongoing CIA drug smuggling etc.
>>Leslie Cockburn, _Out of Control: The Story of the Reagan
>>Administration's Secret War in Nicaragua, the Illegal Arms
>>Pipeline, and the Contra Drug Connection_, Atlantic Monthly
>>Press, 1987. Alleges that the CIA allowed drug traffickers to
>>use its airfields to import cocaine and marijuana into the United
>>States in return for the drug dealers giving money and arms to
>>the Nicaraguan contras.
>>Leslie Cockburn, "Drugs, Guns and the CIA", PBS Frontline program
>>on 17 May 88.
>>Courtwright , David. _Drug legalization, the drug war, and drug
>>treatment in historical perspective_. [US story]
>>Sally Denton, _The Bluegrass Conspiracy_, Doubleday, 1990.
>>Documents links between Lexington Kentucky police, politicians,
>>patricians and major drug trafficking.
>>Steven Emerson, _Secret Warriors: Inside the Covert Military
>>Operations of the Reagan Era_. (Putnam, 1988). U. S. News &
>>World Report, p31, Nov 16, 1987.
>>Edward J Epstein, _Agency of Fear: Opiates and Political Power in
>>America_. G Putnam's Sons, 1977. Connections between the Nixon
>>administration and heroin trafficking.
>>Ryan Freemantle, _The Fix: Inside the World Drug Trade_. 352p.
>>1986. St. Martin's Press. Illegal drug business. British?
>>Monitor radio.
>>Ronald Hamowy, _Dealing with Drugs: Consequences of Government
>>Control_, Pacific Research Institute for Public Policy. $12.95
>>Sinsemilla Tips, V8#3p27.
>>Kinder, Douglas Clark. _Shutting out the evil: nativism and
>>narcotics control in the United States_.
>>Henrick Krueger (translated by Jerry Meldon), _The Great Heroin
>>Coup: Drugs, Intelligence, and International Fascism_. South End
>>Press, 1980. 240pp. ISBN 0-89608-031-5p. Well documented CIA
>>and DEA encouragement of heroin importation from Asia and Mexico.
>>Jonathan Kwitny, _The Crimes of Patriots: A True Tale of Dope,
>>Dirty Money and the CIA_, WW Norton, c1987. Mother Jones,
>>Aug/Sep 87, p17.
>>Martin A Lee and Bruce Shlain, _Acid Dreams: The CIA, LSD and the
>>Sixties Rebellion_. Grove Press. The Nation, Sep 5, 1987, p
>>189.
>>Rensselaer W Lee III, _White Labyrinth: Cocaine and Political
>>Power_. Transaction Press. 256pp. The economies of Columbia,
>>Peru, and Bolivia have been captured by the drug trade.
>>Michael Levine, ???. 1990. Interview on 23 April 90
>>MacNeil-Lehrer. 25 year DEA agent claims that 50 tons of cocaine
>>per year were shipped thru Honduras to USA to fund the War on
>>Communists.
>>Stanley J Marks, _A Year in the Lives of the Damned: Reagan,
>>Reaganism, 1986!_ Bureau of International Affairs. Reveals 1980
>>agreement to sell arms to Iran and protect drug smugglers.
>>Jonathan Marshall, _Drug Wars_, 1990 Cohan & Cohen. The
>>connection between Mexican drug underworld & CIA.
>>Jonathan Marshall, Peter Dale Scott, and Jane Hunter. _The Iran
>>Contra Connection: Secret Teams and Covert Operations in the
>>Reagan Era_. South End, Boston, 313pp, $11. Drug trafficking,
>>gun running, government toppling, and assassination. Ref: Utne
>>Reader, Nov/Dec 87, p122.
>>Jonathan Marshall. _Opium, tungsten and the search for National
>>Security_. [more stuff on international business and politics of
>>drug trade supported by the US government, but, since profits
>>were lucrative, one that led to corruption and misuse of
>>government officials and resources]
>>Al McCoy, _The Politics of Heroin in Southeast Asia 1972_.
>>Harper & Row
>>McAllister, William. _Conflicts of interest in the international
>>drug control system_. [an economic argument about producing
>>versus manufacturing countries and how they negotiated
>>international drug laws]
>>John McWilliams, _Through the Past Darkly: the Politics and
>>policies of America's drug war_.
>>Meyer, Kathryn. _Fast crabs and cigarette boats: a speculative
>>essay_. [this is about drug wars in china, starting with Great
>>Britain's monopoly on selling opium to China from India]
>>James Mills, _The Underground Empire_, Doubleday, $22.95
>>Newsweek, July 28, 1986, p65. Big time drug smuggling business
>>and efforts of "Centac" to neutralize it. Purportedly true, but
>>absolutely NO references nor documentation.
>>David Musto, _The American Disease: Origins of Narcotic
>>Control_. Utne Reader, #32p78
>>Reed, Terry and John Cummings. _Compromised: Clinton, Bush and
>>the CIA_. Reports on the aledged conspiracy of CIA drug
>>trafficking out of Mena, AR. WSJ, 940420.
>>Peter Dale Scott & Jonathan Marshall, _Cocaine Politics: Drugs,
>>Armies, and the CIA in Central America_. 1992, Univ of
>>California Press, Berkeley CA. $13.
>>Elaine Shannon, _Desperados: Latin Drug Lords, US Lawmen, & the
>>War America Can't Win_. Time.
>>Sam Staley, _Drug Policy and the Decline of American Cities_,
>>Transaction, 1992. WSJ, Aug 13 92, A13. War on Drugs escalates
>>urban violence & removes youth from the legitimate economy.
>>Stutman, _Deep Cover_. Confessions of an ex-DEA agent.
>>Arnold S Trebach, _The Great Drug War_. Professor of Justice at
>>American University. ref Reason, Nov 87, p46.
>>William O. Walker, III, ed. _Drug Control Policy: Essays in
>>historical and comparative perspective_. Penn State Press, 1992.
>>Steven Wisotsky, Beyond the War on Drugs: Overcoming A Failed
>>Policy", professor of legal studies at Nova University Law
>>Center, Fort Lauderdale, FL.
>>Leon Ziegler, _La Suiss Lave Plus Blanc_, Editions du Seuil,
>>Paris, France. Swiss money laundering. Alleges that Iran paid
>>for arms from the Iran-contra conspiracy partly in heroin &
>>morphine base. ACRES USA, Apr 90, p21.
>>=END=WORMSCAN.TXT Updated: 941103
>>
The Front Line
>>From: Jim Rosenfield <j...@igc.apc.org>
>>Newsgroups: talk.politics.drugs
>>Date: 11 Jun 94 11:45 PDT
>>Subject: Collateral Casualties-JAMA 6/1/94
>>Message-ID: <1484000557@cdp>
>>Superb scholarly discussion of the War on Drugs from the
>>June 1, 1994 Journal of the American Medical Association (JAMA)
>>can be found in the message (21kB) following these excerpts:
>>`COLLATERAL CASUALTIES' CLIMB IN DRUG WAR by Andrew A. Skolnick
>>SINCE PRESIDENT Nixon declared war on drugs in 1972, the nation's
>>primary remedy for illicit drug use has been an escalation of
>>federal, state, and local law enforcement activities aimed at
>>discouraging use by punishing both dealers and users. However,
>>an increasing number of health, law, and other experts say the
>>current policy is clearly failing and shows no sign of ever doing
>>more good than harm.
>>...................
>>"There appears to be an unwillingness among many national leaders
>>to collect all the data needed for an objective analysis of the
>>nation's drug policy, ' says Baltimore (Md) Mayor Kurt Schmoke.
>>"So much of the nation's drug policy is driven by politics and
>>emotions rather than any objective analysis of the most important
>>data."
>>............
>>With nearly five in every 1000 Americans behind bars on any given
>>day, the United States has the dubious distinction of
>>incarcerating a higher percentage of its citizens than any
>>country in the world. Thanks in large part to the country's war
>>on drugs......
>>................at least some of this resistance (to looking at
>>the collateral damage to people) reflects an underlying belief
>>that illicit drug users should pay for their crime with their
>>lives and that their deaths will deter others from using such
>>drugs.
>>******************************************
>>This posting made with no permission whatsoever. This 'email'
>>version was OCRed and retyped by Jim Rosenfield from the original
>>personal copy and is shared in this form strictly for the purpose
>>of furthering this informal public discourse. It is intended for
>>no commercial purpose whatsoever and all readers are advised to
>>contact JAMA regarding any issue of copyright.
>>Article 26499 of talk.politics.drugs:
>>Path: news.claremont.edu!nntp-server.caltech.edu!netline-fddi.jpl.nasa.gov!elroy.jpl.nasa.gov!lll-winken.llnl.gov!decwrl!decwrl!sgi!cdp!jnr
>>From: Jim Rosenfield <j...@igc.apc.org>
>>Newsgroups: talk.politics.drugs
>>Date: 11 Jun 94 11:47 PDT
>>Subject: Re: Collateral Casualties-JAMA 6/1/94
>>Message-ID: <1484000558@cdp>
>>References: <1484000557@cdp>
>>Sender: Notesfile to Usenet Gateway <no...@igc.apc.org>
>>Lines: 400
>>All rights belong to Journal of the American Medical Association
>> (please see end-note regarding this posting)
>>`Collateral Casualties' Climb in Drug War
>>in JAMA June 1, 1994
>>by Andrew A. Skolnick
>>SINCE PRESIDENT Nixon declared war on drugs in 1972, the nation's
>>primary remedy for illicit drug use has been an escalation of
>>federal, state, and local law enforcement activities aimed at
>>discouraging use by punishing both dealers and users. However,
>>an increasing number of health, law, and other experts say the
>>current policy is clearly failing and shows no sign of ever doing
>>more good than harm.
>>Advocates for reform are calling for an objective cost-benefit
>>analysis of current prohibition laws and of alternative
>>approaches that place more emphasis on harm reduction than on the
>>complete elimination of "recreational" illicit drug use.
>>Yet despite the nation's long, bitter and expensive war on drugs,
>>much vital data remain uncollected - such as the total number of
>>illegal-drug addicts killed by overdoses. "There appears to be
>>an unwillingness among many national leaders to collect all the
>>data needed for an objective analysis of the nation's drug
>>policy,' says Baltimore (Md) Mayor Kurt Schmoke, a leading
>>proponent of the decriminalization or the "medicalization" of
>>illicit drugs. "So much of the nation's drug policy is driven by
>>politics and emotions rather than any objective analysis of the
>>most important data," he says.
>>While the total number of deaths in the United States from
>>overdose or toxic reactions to illegal drugs is unknown, a recent
>>study funded by the National Institute on Drug Abuse provides
>>some idea of the problem's magnitude. The Drug Abuse Warning
>>Network Survey of a nonrepresentational sample of hospital
>>emergency department and medical examiner reports from 27
>>metropolitan areas found that 6001 people in 1991 suffered fatal
>>reactions to illicit drugs. However, decriminalization advocates
>>point out that many if not most of such deaths result from the
>>use of contaminated drugs or drugs that have unexpectedly high
>>potency. The vast majority of these deaths, they say, could be
>>prevented by providing addicts with methadone or other
>>replacement drugs in a clinical setting where health care and
>>addiction therapy can be provided. An often-cited argument
>>against de-criminalization is that it will increase the number of
>>infants exposed prenatally to illegal drugs. Indeed, some infants
>>born to heroin or cocaine addicts have a variety of physical and
>>cognitive problems that may be related to drug abuse. However,
>>the extent of this problem is not known.
>>Deanna S. Gomby, PhD, director of research and grants for child
>>development and Patricia H. Shiono, PhD, director of research and
>>grants for epidemiology, ar the Center for the Future of Children
>>Los Altos, Calif, estimate that 2% to 3% of newborns in the
>>United States each year may be exposed prenatally to cocaine,
>>compared with 73% exposed to alcohol and 38% exposed to the
>>effects of maternal smoking (in their report The Future of
>>Children. 1991;1:17-25). They say that 554,000 to 739,000 US
>>newborns are exposed each year to cocaine, heroin or other
>>illegal drugs.
>> Their estimate is somewhat higher than the 350,000 to 625,000
>>newborns estimated by the Institute of Medicine to have been
>>exposed to illegal drugs, based on the National Institute on Drug
>>Abuse's 198 National Household Survey. However, these estimates
>>are not a measure of the harm caused by prenatal exposure to
>>these drugs. Prenatal exposure does not necessarily mean damage
>>to the fetus, Gomby and Shiono write.
>>Media-generated hysteria over "crack babies" has led to the
>>imprisonment of women who use cocaine during pregnancy. Many
>>health care workers believe that the fear of prosecution and
>>imprisonment discourages many of the women who most need prenatal
>>care from seeking it (JAMA. 1990;261:30t 310). Ironically,
>>properly controlled scientific studies suggest maternal cocaine
>>use may pose less danger to a fetus than maternal cigarette
>>smoking (JAM, 1994;271:576577).
>>Legalization Spur to Crime?
>>Many addiction experts are not in favor of decriminalization.
>>Herbert D. Kleber, MD, executive vice-president and director of
>>the Center on Addiction and Substance Abuse, Columbia University,
>>New York, NY, argues that the current war on drugs has made
>>substantial progress toward reducing drug use as that the current
>>approach "is far preferable to proposals either to legalize drugs
>>or to refrain from enforcing the laws prohibiting their use"
>>(N EngI Med. 1991;330:361-365).
>>Kleber, who as deputy director of the Office of National Drug
>>Control Policy was a general in President Rush's escalated war on
>>drugs, which promoted the policy of "zero tolerance," says
>>legalizing illicit drugs would lead inevitably to a sharp rise in
>>use. Cocaine use would increase from the current 2 million users
>>to between 18 million (the estimated number of problem drinkers)
>>and 50 million (the estimated number of smokers), he says.
>>Moreover, in the New England Journal article cited above, Kleber
>>writes, "Crime would not decrease if drugs were legalized. If the
>>cost of drugs were low, addicts would tend to spend more time
>>using them and less time working, so they would continue to need
>>to commit crimes in order to acquire money. If the total number
>>of addicts rose sharply as availability increased, crime would
>>also increase."
>>While acknowledging that marijuana does not induce violent or
>>criminal behavior, as cocaine and alcohol are said to do,
>>legalizing that drug, he says, will do nothing to reduce crime in
>>the streets.
>>KIeber concedes that mandatory minimum sentencing laws may
>>require revision in order "to deter or control the true `drug
>>kingpins' and to make better use of limited prison facilities."
>>He also calls for increased funding for drug addiction prevention
>>and treatment programs.
>>Disease Follows War
>>Although the morbidity and mortality that directly result from
>>illicit drug use in the United States have not been adequately
>>measured, there are a good deal of data on the morbidity and
>>mortality that result from prohibition. Epidemics of disease
>>always follow in the footsteps of wars. The war on drugs is no
>>exception. The difficulty users of intravenously administered
>>illegal drugs have in obtaining clean needles has stymied efforts
>>to control the spread of drug abuse associated hepatitis, AIDS,
>>and tuberculosis (TB). Other infections are mounting as well, as
>>is the number of children and adults who have been killed in
>>battles over drug-dealing turfs, in crimes committed by addicts
>>to pay for the next fix, and in shootouts between drug dealers
>>and law enforcement officials. In addition to rising body counts,
>>the war's toll includes the rending of the social fabric of the
>>nation's inner cities, especially in black and Hispanic
>>communities that have become the main focus of law enforcement
>>activities.
>>Despite the severe punishment users of illicit drugs face if
>>caught, illicit drug use is widespread in the United States.
>>According to the National Institute on Drug Abuse's 1992 National
>>Household Survey, more than one in three Americans (36.2%) have
>>used illegal drugs at least once in their lifetime, nearly 28
>>million Americans (11.1%) used them in the previous year, and
>>almost 14 million Americans (5.5%) used them during the past
>>month.
>>While choice of drugs may vary, illicit drug use is comparable
>>among blacks, whites, and Hispanics. Nevertheless, although
>>blacks and Hispanics make up approximately 20% of the US
>>population, they make up nearly 75% of the men and women in jails
>>and prisons for drug violations, says Jerome Miller, PhD, founder
>>and director of the National Center on Institutions and
>>Alternatives, a group in Alexandria, Va, that does research and
>>consultant work in criminal and juvenile justice.
>>With nearly five in every 1000 Americans behind bars on any given
>>day, the United States has the dubious distinction of
>>incarcerating a higher percentage of its citizens than any
>>country in the world. Thanks in large part to the country's war
>>on drugs, US prison and jail populations are 2-1/2 times larger
>>than they were in 1980. That growth has outpaced all attempts to
>>house and care for the inmates. Each week the United States must
>>add nearly 1000 prison beds for its rapidly growing inmate
>>population.
>>According to US Bureau of Justice statistics, on December 31,
>>1993, there were 883,656 inmates (50,493 women) in state and
>>federal prisons. An additions 441,781 adults, including 39,834
>>women were in local jails on June 30, 1992. In 1980, federal and
>>state prisons held only 329,821 inmates.
>>More than 20% of men in prisons are there for drug violations.
>>One in three women in prison were sentenced for drug crimes, up
>>from one in eight in 1983. The incarceration of these women, in
>>particular, has had an enormous impact or their families.
>>According to a 1939 survey of inmates of 424 local jails across
>>the nation, two thirds of incarcerate women were mothers of
>>children younger than 18 years, and two thirds of the mothers
>>said their children were in their custody at the time of their
>>arrest.
>>According to the Drug Policy Foundation, Washington, DC, from
>>1980 to 1992 federal and state government spent approximately
>>$150 billion on law enforcement efforts in the war against
>>illegal drugs. An additional $150 billion is likely to be spent
>>between 1992 and 1997. In 1980, the federal government spent $1
>>billion on the war. The proposed federal drug control budget for
>>1995 is $13.2 billion. State and local governments will spend
>>$16.5 billion more says press officer David Fratello.
>>The foundation and other critics see similarities between the
>>drug war and the Vietnam war, in which costs escalated and the
>>body counts mounted while the nation's other problems became
>>increasingly underfunded and defenders of the war periodically
>>claimed to see the `light at the end of the tunnel."
>>Perhaps the side effect of the drug war that has caused the
>>greatest public concern is the nation's climbing murder rate,
>>attributable in large part to drug-related crime in inner-city
>>areas. Like many critics of current policy, Mayor Schmoke blames
>>much of the violence in Baltimore and other American cities on
>>the "failed national drug strategy," which he and others say has
>>made the illicit drug trade enormously profitable. "Drug
>>traffickers kill to protect or seize drug turf, and addicts
>>commit crimes to get money for drugs," he says. "Almost half the
>>murders in Baltimore in 1992 were drug related."
>>According to the Federal Bureau of Investigation, 5.7% of the
>>22,510 homicides that occurred in the United States in 1992
>>involved motives related to an illegal drug transaction. However,
>>this number does not include victims of crimes committed to
>>obtain money for illegal drugs or those killed in battles over
>>drug-dealing turf. Local studies show that a much higher
>>percentage of murders may be drug related. A study of all
>>homicides involving victim' younger than 18 years in Fulton
>>County Georgia, between 1988 and 1992 (for which a motive was
>>determined), showed that 121 (21%) were connected to illegal drug
>>activity (MMWR MorS MoM Wkly Rep. 1994;43:251-261). Another study
>>showed that 434 (20%) of all homicides in Los Angeles, Calif,
>>between January 1986 and August 1988 involved illegal drugs
>>(AJDC. 1992;146:683887)
>>The decriminalization of illegal drug could greatly reduce the
>>forces that drive both violent crimes and crimes against
>>property, Schmoke says.
>>Baltimore, he says, is a perfect example of how and why the
>>national drug strategy is failing. With 48,000 heroin and cocaine
>>users and only 5,300 treatment slots, the only therapy most
>>addicts receive is arrest and incarceration. "We made 18000
>>drug-related arrests last year. Fifty-five percent of the cases
>>handled by the Baltimore state's attorney's office are drug
>>offenses." The national situation is not much better. According
>>to federal figures, there are more than 2.77 million Americans in
>>need of treatment for addiction to illicit drugs, but only
>>600,000 slots in the nation's treatment facilities.
>>Breading Ground for HIV and TB
>>Although the public's fears seem to be centered on drug-related
>>violence, the number of deaths caused by diseases spread by
>>shared hypodermic needles is many times greater and growing every
>>year. The news media continue to focus on the hundreds killed in
>>drug wars but give little attention to the tens of thousands
>>dying of diseases spread by IV drug use each year.
>>According to the Centers for Disease Control and Prevention's
>>October 1993 Hw/MDS Surveillance Report, from October 1992
>>through September 1993, 26,033 people (19,142 men and 6,391
>>women) developed AIDS attributable to needles shared during IV
>>drug use. Another 3,576 (1102 men and 2474 women) developed AIDS
>>through heterosexual contact with IV drug users. In addition, 397
>>children of IV drug-using mothers or fathers were diagnosed as
>>having AIDS. All totaled, 30,006 cases of AIDS, or 30.3% of all
>>new AIDS cases in 1992, were caused by contaminated hypodermic
>>needles.
>>Despite this great toll in death and the enormous strain on
>>public health services, many political leaders still strongly
>>oppose needle exchange programs, even though studies show that
>>the programs are effective in reducing the spread of human
>>immunodeficiency virus (HIV) infection. Nine states still have
>>laws that prevent addicts from obtaining sterile hypodermic
>>needles.
>>Opponents of needle exchange programs argue that providing
>>addicts with sterile needles condones their illegal behavior.
>>However, advocates for these programs say that at least some of
>>this resistance reflects an underlying belief that illicit drug
>>users should pay for their crime with their lives and that their
>>deaths will deter others from using such drugs.
>>More than one champion of the "zero- tolerance" policy has
>>publicly described drug users as deserving the worst of fates. In
>>1938, former First Lady Nancy Reagan told the press that "if
>>you're a casual drug user, you are an accomplice to murder."
>>Former Los Angeles police a chief Daryl Gates went further by
>>advising the US Senate Judiciary Committee that "casual drug
>>users" should be "taken out and shot."
>>Reuse of hypodermic needles by addicts also results in an unknown
>>number of cases of hepatitis B, bacteremia, and other infections.
>>Some of these diseases are also transmitted to sexual partners,
>>children, and others in the community. Disease spread by
>>contamInated needles is clearly a major public health problem
>>that is not adequately addressed by the current national drug
>>control policy.
>>By incarcerating large numbers of drug users, the nation has been
>>housing men and women at high risk of HIV infection and TB in
>>greatly overcrowded facilities, in an environment that encourages
>>the spread of these diseases. Inmates infected with HIV and TB
>>are at high risk for developing active TB and spreading it in
>>prison and when they are released, in the community. Overtaxed
>>medical staffs at correctional facilities are not able to detect
>>and treat many of the infectious cases (JAMA.1992;2G8:3177-3178).
>>The rates of TB in some jails and prisons have skyrocketed. In
>>19%, the case rate in the general population was 13.7 per 1% 000.
>>Case rates in correctional facilities have been as high as 400 to
>>500 per 100000.
>>`Decimating' Black Communities
>>"The drug war takes most of its collateral casualties from the
>>inner cities," says Ethan Nadelmann, PhD, assistant professor at
>>Princeton (NJ) University's Woodrow Wilson School of Public and
>>International Affairs. "Drug prohibition has created a permanent
>>under-class of unemployable inner-city youths whose lives have
>>become hopelessly interwoven with drug crime and who in turn are
>>becoming parents to another generation of dysfunctional
>>children."
>>The war on drugs has virtually decimated many black communities
>>and has led to increasing poverty, alienation, and violent
>>antisocial behavior, says Miller of the National Center on
>>Institutions and Alternatives. Miller, who is author of Search
>>and Destroy: African-American Males and the Criminal Justice
>>System (New York, NY: Cambridge University Press. In press), says
>>his center's figures show that 75% to 30%-of black men will be
>>arrested at least once by the time they reach 35 years of age
>>"Those who spend time in correctional facilities are compelled to
>>adopt the values and violent tactics necessary to survive in
>>these facilities," Miller says- "They then bring these antisocial
>>survival tactics back out to the streets.
>>"The war on drugs is causing far more destruction than the use of
>>illicit drugs ever could." Miller blames much of the inner-city
>>violence on some of the drug control strategies used by police.
>>"The widespread use of stiff sentences to force drug users and
>>minor dealers to inform on others has helped escalate the
>>violence," he says. "Gang-related murders have become the way
>>young men are expected to establish membership in the group and
>>convince fellow gang members that they're not snitches who will
>>ever rat on them."
>>According to a General Accounting Office (GAO) report, only 1% of
>>the estimated 27,000 federal inmates who have moderate-to-severe
>>substance abuse problems receive adequate treatment. In state
>>prisons, the GAO found that less than 20% of inmates with drug
>>problems received any type of treatment (GAO. Drug Treatment:
>>State Prisons Face ChalLenges in Providing Services. Washington,
>>DC: GAO; 1991).
>>According to a 1999 and 1990 American Jail Association survey,
>>less than 20% of jails reported having drug treatment programs
>>involving paid staff and 75% provided no group therapy, drug
>>education, transition planning, or referral to community drug
>>treatment agencies.
>>In 1992, the American Bar Association Ad Hoc Committee on Drugs
>>concluded that mandatory minimum sentences require expenditures
>>"disproportionate to any deterrent or rehabilitative effect they
>>might have." The committee found that there is no proof that
>>incarcerating large numbers of drug offenders with stiffer prison
>>sentences is reducing criminal behavior. Indeed, it concluded,
>>the burden of "warehousing" more and more prisoners is preventing
>>correctional facilities from providing drug offenders with drug
>>treatment, education, and job-training programs that might
>>benefit them.
>>A joint position paper by the American College of Physicians, the
>>National Commission on Correctional Health Care, and the American
>>Correctional Health Services Association (Ann Intern Med. 1992;
>>117:71-77) concludes: "Clearly, Mandatory sentencing practices
>>and the National Drug Control Strategy have overwhelmed
>>correctional facilities to the point of crisis, without
>>substantially alleviating the national problem of drug abuse or
>>drug-related crime.... As health professionals, we are seeing the
>>human costs of putting more and more people behind bars.
>>"Given its enormous human and financial cost, the National Drug
>>Control Strategy, with its emphasis on incarceration, must be
>>reconsidered. Its effectiveness in managing and preventing drug
>>abuse must be evaluated, and alternative approaches that put less
>>emphasis on criminal sanctions and more on prevention and
>>treatment must be considered."
>>================================================================
>>This posting is not made with any permission whatsoever. This
>>'email' version was OCRed and retyped by Jim Rosenfield from the
>>original personal copy and is shared in this form strictly for
>>the purpose of furthering this informal public discourse. It is
>>intended for no commercial purpose whatsoever and all readers are
>>advised to contact JAMA regarding any issue of copyright.
>>I am presently seeking formal permission to post this and other
>>articles in this way for strictly non-commercial purposes and
>>trusting that JAMA will not be offended. I commend the journal
>>to you and urge you to buy your own copy if this material is of
>>interest to you.
>>One thing this posting needs is a thorough proof-reading and
>>comparison to the original to make sure all the biliographical
>>refs and so on were retyped correctly. If anyone can take this
>>on, please send me an ascii or WP5 file with the corrected
>>version. Angels will smile upon your efforts.
>>..................................................j...@igc.org
>>Article 26532 of talk.politics.drugs:
>>Path: news.claremont.edu!nntp-server.caltech.edu!netline-fddi.jpl.nasa.gov!elroy.jpl.nasa.gov!usc!nic-nac.CSU.net!charnel.ecst.csuchico.edu!olivea!sgigate.sgi.com!sgi!cdp!jnr
>>From: Jim Rosenfield <j...@igc.apc.org>
>>Newsgroups: talk.politics.drugs
>>Date: 13 Jun 94 13:13 PDT
>>Subject: Re: Collateral Casualties-JAMA 6/1/94
>>Message-ID: <1484000562@cdp>
>>References: <1484000557@cdp>
>>Sender: Notesfile to Usenet Gateway <no...@igc.apc.org>
>>Lines: 6
>>Permission from JAMA to post "Collateral Casualties" has now been
>>granted to me, so you can stop staying awake nights worrying
>>about when I am going to be busted for Copyright Infringment.
>>Thanks for your concern.
>>Jim Rosenfield
The Front Line
>>From: este...@cdp.UUCP
>>Newsgroups: alt.drugs
>>Subject: Bill of Rights & Drugs Prt I
>>Date: 3 Jan 91 21:53:00 GMT
>>Attention alt.drugs conference users: Many of us are concerned
>>about the impact of the war on drugs on our constitutional rights.
>>I was invited by the Colorado Bar Association to address it on this
>>subject this fall. For ease of transmission, I have divided the
>>text of the speech into three parts. The speech was reprinted on
>>7 pages in VITAL SPEECHES OF THE DAY, Nov. 1, 1990, a publication
>>found in many public libraries.
>> Part I of III
>> "IS THE BILL OF RIGHTS
>> A CASUALTY OF THE WAR ON DRUGS?"
>> ERIC E. STERLING
>> President, The Criminal Justice Policy Foundation
>> PeaceNet: esterling
>> 2000 L St. N.W., Suite 702
>> Washington, D.C. 20036
>> Tel. 202-835-9075
>> Fax. 202-223-1288
>> Remarks prepared for
>> delivery to the
>> COLORADO BAR ASSOCIATION
>> 92nd Annual Convention
>> Aspen, Colorado
>> September 14, 1990
>> (Revised, November 5, 1990)
>> Good afternoon. I'm going to talk to you this afternoon about
>>the "war on drugs" and its effects on the Bill of Rights. There
>>isn't any question that drug abuse is one of our nation's most
>>serious public health problems. In some instances, drug abuse can
>>cause birth defects in babies, mental retardation and learning
>>disabilities in children, mental illness in teenagers and adults,
>>as well as death and suicide. Addiction to tobacco causes at least
>>300,000 deaths a year and billions of dollars of economic losses.
>>Abuse of alcohol causes some 100,000 deaths per year, and thousands
>>more crippling injuries.
>> The criminal traffic in drugs usually involves violence and
>>murder, bribery, and tax evasion. Many drug addicts commit theft,
>>fraud, burglary or robbery to get the money to buy expensive drugs.
>>There is a tiny criminal traffic in alcohol, and crime committed
>>to buy alcohol, in contrast to crime committed under the influence,
>>is not great. Obviously, drug abuse and drug trafficking are very
>>serious problems.
>> This afternoon I'm going to be critical of our war-like
>>approach to the drug problem. But that doesn't mean that I think
>>drugs are good. I don't. I don't think we can win the "war on
>>drugs," but that doesn't mean we can't be a lot more effective in
>>dealing with the drug problem. Basically, we have to manage the
>>drug problem--that is, the distribution has to be regulated and
>>policed and subject to the forces of law and order.
>> The war on drugs is a war on all of us. Who is the enemy in
>>the war on drugs? It is not the drugs because the drugs are mere
>>chemicals. We have a war on drugs no more than we have a war on
>>carbon dioxide.
>> In the eyes of the government, the obvious enemy is everyone
>>who uses illegal drugs, and everyone who gives them aid and
>>comfort. Of course, the obvious enemy includes everyone who buys
>>drugs, who sells drugs, who transports drugs, who grows marijuana.
>> But there are hidden enemies. The hidden enemy is every
>>person not actively working to purge drug users from our society.
>>The hidden enemies include the employers of people who may use
>>drugs if the employer fails to adopt steps to root out drug users
>>-- even if employees are competent and perform well.
>> The hidden enemy is every parent of a drug user who fails to
>>turn their child over to the police or fails to use every means to
>>coerce their child into stopping his or her drug use.
>> The hidden enemy is every lawyer who represents a person
>>accused of violating the drug law.
>> The hidden enemy is everyone who makes or exhibits a motion
>>picture that makes jokes about drug use. The hidden enemy is every
>>merchant who sells cigarette rolling papers. The enemy hidden is
>>every radio station that plays rock 'n' roll from the 1960s and
>>70s.
>> The hidden enemy is our next door neighbor, our bowling buddy
>>or golfing partner, our mail carrier, our secretary, our spouse.
>>We are the government's hidden enemy.
>> When you have a hidden enemy, you need to use extremely
>>powerful weapons. As in Vietnam, when you can't find the hidden
>>enemy, sometimes weapons are used that injure the innocent. A
>>foundation of our system of justice is that it is to protect the
>>innocent. That foundation has been filled by the termites of the
>>war on drugs.
>> This afternoon let's examine the weapons being used by the
>>government against its enemies in the war on drugs and examine the
>>casualty list.
>> It is my thesis that among the most tragic casualties in the
>>"war on drugs" are our constitutional liberties. To start, let's
>>go through the Bill of Rights in the Constitution one-by-one to
>>see how they have been affected by the war on drugs.
>> The First Amendment: "Congress shall make no law respecting
>>an establishment of religion, or prohibiting the free exercise
>>thereof; or abridging the freedom of speech, or of the press..."
>> "What does the First Amendment have to do with drugs?" you ask.
>> I want to bring two examples to your attention: the first is
>>the decision of the United States Supreme Court, Employment
>>Division of Oregon v. Smith (--U.S.--, 110 S.Ct. 1595, No. 88-1213,
>>April 17, 1990). In that case two Native Americans were discharged
>>>from employment in the drug treatment program for which they worked
>>because they used peyote as part of their participation in the
>>religious practices of the Native American Church. Peyote is the
>>sacrament in that church. They applied for unemployment benefits
>>after they were fired, and the State of Oregon turned them down.
>>The Oregon Supreme Court, however, found that as participants in
>>the Native American Church they had a right to use peyote, and said
>>they were entitled to benefits.
>> But the Oregon Attorney General, Dave Frohnmeyer, Republican
>>candidate for Governor, saw the case differently. In his view,
>>the war on drugs can not tolerate drug use. If a drug treatment
>>program demands a "drug-free" staff, Native Americans who worship
>>with their sacrament ought to be fired. And an appropriate
>>government weapon in the war on drugs is to deny such people
>>unemployment benefits.
>> Notwithstanding well settled Supreme Court precedents that
>>denial of these benefits impermissibly restricts the free exercise
>>of religion, Attorney General/gubernatorial candidate Frohnmeyer
>>appealed to the U.S. Supreme Court.
>> It is important to stress that peyote is the sacrament in the
>>Native American Church--it is used by over 250,000 Native
>>American worshippers. They don't consider it a drug anymore than
>>Catholics think of communion wine as a drug, or as a refreshing
>>beverage.
>> The Supreme Court, 5 to 4, reversed the Oregon Supreme Court,
>>and in the process threw out the long-standing doctrine that a
>>State's burden upon the free exercise of religion can only be
>>justified by a State "compelling interest" that cannot be served
>>by less restrictive means (Sherbert v. Verner, 374 U.S. 398, 406
>>(1963), Cantwell v. Connecticut, 310 U.S. 296 (1940)). Consider
>>the background: the respondents were never prosecuted by Oregon
>>for their use of peyote. There is no evidence that anyone has ever
>>been harmed by the religious use of peyote. 23 States and the
>>Federal government exempt the religious use of peyote from the
>>Controlled Substances Act. Indians who use peyote as part of the
>>Native American Church are less likely to abuse drugs or be
>>alcoholic than those who do not.
>> Here is a case where use of a religious sacrament, because it
>>has been classified by law enforcement authorities as a drug, but
>>nevertheless an essential component of the way in which people
>>worship and have worshipped for hundreds of years, became the basis
>>for denying unemployment benefits. From the perspective of the
>>international, multi-billion dollar war on drugs, this case was
>>totally insignificant. Unlike crack or heroin, the use of peyote
>>is not destroying people, their families, or cities like New York,
>>or nations like Colombia.
>> Most importantly, this case was a purely a symbolic
>>battlefield in the war on drugs. Yet this totally insignificant
>>drug case became the occasion for restricting the religious freedom
>>of all Americans by narrowing the applicability of the Free
>>Exercise clause. Justice Blackmun wrote ironically in his dissent,
>>"One hopes that the Court is aware of the consequences, and that
>>its result is not a product of overreaction to the serious problems
>>the country's drug crisis has generated." (Dissenting Slip Opinion
>>at 2.)
>> Justice Blackmun put his finger on the problem: this trashing
>>of the Free Exercise of Religion was purely an overreaction to the
>>drug problem, and the Bill of Rights was a casualty. As we will
>>see, this result is hardly new.
>> Let's look at another way in which the First Amendment is
>>being undermined by the war on drugs--in this instance, the
>>freedom of the press. This summer, a magazine about drugs and the
>>drug culture--High Times--is being investigated by the U.S.
>>Attorney in Louisiana for aiding and abetting the illegal
>>cultivation of marijuana. The magazine prints a column called "Ask
>>Ed" that gives tips on improving marijuana cultivation. High Times
>>is also being investigated for printing advertisements for "grow
>>lights," irrigation equipment that can be used for growing, among
>>other plants, marijuana, and an advertisement for "The Seed Bank",
>>a business in the Netherlands that would mail seeds for growing
>>marijuana.
>> This investigation is not an obscenity case. This is not an
>>investigation of an "incitement to imminent lawless action" under
>>Brandenburg v. Ohio (395 U.S. 444 (1969)). This is an old-
>>fashioned threat of prosecution for seditious writing. This harks
>>back to the dark days of the 1918 Sedition Act and the prosecution
>>of filmmaker Robert Goldstein, sentenced to 10 years in prison for
>>his unbecoming portrayal of the British (then U.S. wartime allies)
>>in a film about the American Revolution, and the conviction of
>>Eugene Debs for criticizing Teddy Roosevelt's support of World War
>>I.
>> Once again, in the charged atmosphere of war, the fundamental
>>freedom of press is endangered.
>> The second amendment says, "A well regulated militia, being
>>necessary to the security of a free state, the right of the people
>>to keep and bear Arms, shall not be infringed." Gun control
>>advocates argue that this amendment does not guarantee an
>>individual right. (Quilici v. Village of Morton Grove, 695 F.2d
>>261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), and U.S.
>>v. Miller, 307 U.S. 174 (1939).) However, having been responsible
>>for Federal gun control legislation between 1981 and 1989 and
>>having read many of the law review articles on the origins and
>>meaning of the Second Amendment (See e.g. Stephen P. Halbrook,
>>Ph.D., J.D., THAT EVERY MAN BE ARMED: THE EVOLUTION OF A
>>CONSTITUTIONAL RIGHT (University of New Mexico Press 1984); To
>>Keep and Bear Their Private Arms: The Adoption of the Second
>>Amendment, 1787 - 1791, 10 Northern Kentucky Law Review 13-39
>>(1982) reprinted in 131 CONG. REC., 99th Cong., 1st Sess., S9105-
>>9111, July 9, 1985); The Right to Bear Arms in the First State
>>Bills of Rights, 10 VERMONT LAW REVIEW 255-320 (1985).), I think
>>there is an individual right to keep and bear some arms. There
>>are scores of millions of Americans who possess a .22 rifle for
>>target practice, a handgun for personal or family protection, or
>>a shotgun for hunting. Perhaps there are a few such Americans in
>>this room today. I think that such firearms possession is
>>protected by the Second Amendment.
>> But the extremism of the war on drugs manages to infringe on
>>that right. If, after surgery let's say, you use your wife's
>>Valium or your husband's pain medication, and the prescription was
>>not issued to you, you are an unlawful user of drugs. If you also
>>happen to be exercising your Second Amendment rights and possess
>>a firearm in your closet or gun cabinet, your possession of the
>>firearm makes you, at that moment, a Federal felon subject to a
>>ten-year sentence and a quarter million dollar fine (18 U.S.C.
>>922(g) and 924(a)(2)). This penalty also applies to the millions
>>of American gun owners who use marijuana, even those who live in
>>states for which the penalty for possessing marijuana is a minor
>>civil offense as it is here in Colorado. If you receive a shotgun
>>for Christmas and accept it, having twice been convicted of
>>possession of marijuana or another drug, you are subject to a
>>mandatory five years in prison (18 U.S.C. 924(c) and 21 U.S.C.
>>844(a)).
>> The politically manufactured fear (See Kaplan, MARIJUANA --
>>THE NEW PROHIBITION, (1970) 91-146, and materials cited therein.)
>>of the blood-thirsty maniac killer of "Reefer Madness," led
>>Congress to prohibit any person who was addicted to or used illegal
>>drugs from receiving a firearm. The blunderbuss weapon of an
>>overbroad law was created. Thus, millions of Americans, whose
>>illegal use of drugs is a minor or technical violation, are felons
>>and potential casualties because of their exercise of Second
>>Amendment right to posses firearms.
>> Incidentally, common sense is also a casualty in the war on
>>drugs. Prison is one place we don't want convicts to have
>>firearms. In 1984, a ten year prison term was established for
>>possessing or bringing a firearm or bomb into a Federal prison.
>>In 1988, Senator Phil Gramm of Texas insisted that the penalty for
>>bringing heroin, cocaine or LSD into prison be raised from 3 years
>>to 20 years. Now possession of drugs in prison is twice as serious
>>as possessing a firearm or a bomb, rocket or grenade. When the
>>stupidity of this amendment was pointed out, the Senator's counsel
>>insisted that it was Gramm's contribution to the 1988 Anti-Drug
>>Abuse Act and it had to be in the bill. (18 U.S.C. 1791(b)(1); P.L.
>>100-690, sec. 6468(a), (b).
>> The Third Amendment prohibits in time of peace the quartering
>>of soldiers in any house. You recall, of course, that in the 18th
>>century the King of England quartered soldiers in homes to keep an
>>eye on the unruly, disloyal colonists. About all the King had were
>>soldiers--he had few other officials to police the behavior of
>>citizens. Police as we know them today were not invented until the
>>19th century. Well, today government mandated urine testing is the
>>contemporary equivalent of quartering troops in homes. The
>>disloyal person who smokes marijuana in his home Saturday night
>>while watching a home video, who is urine tested by government
>>order on Tuesday, suffers the same degrading, invasive surveillance
>>as if the King's soldier were sitting there in the living room
>>monitoring the citizen's private activity.
>> Now the government uses infra red cameras in military
>>satellites designed to find the hot engines of enemy vehicles
>>moving at night to look over houses in America to find those that
>>show up as excessively warm. This evidence is used for obtaining
>>records of electricity use to see if someone might be growing
>>something indoors that he or she shouldn't be. Now instead of
>>merely stationing soldiers in homes, the war on drugs uses "Buck
>>Rogers" weapons--the technology of 21st century warfare--to
>>look right through the ceiling into our homes. The privacy from
>>military surveillance embodied in the third amendment is another
>>casualty.
>>PART II
>> The Fourth Amendment states that "The right of the people to
>>be secure in their persons, houses, papers and effects, against
>>unreasonable searches and seizures, shall not be violated." Then
>>the amendment spells out the procedure for issuing warrants. Every
>>member of this audience who practices criminal law knows that every
>>interpretation of this amendment that ever extended the "right of
>>the people to be secure" has been reversed in the 18 years since
>>President Richard Nixon declared war on drugs. From the first days
>>of the war on drugs, new exceptions to the warrant requirements,
>>to the probable cause requirements, to the particularity
>>requirements, have been created--and almost all of these have
>>been in drug cases. Those of you who do not practice criminal law,
>>who studied criminal procedure in law school ten or fifteen years
>>ago would be shocked. Lead cases you knew such as Aguilar v. Texas
>>(378 U.S. 108 (1964)), and Spinelli v. U.S. (393 U.S. 410 (1969)),
>>are gone, overruled in drug cases, rationalized by the exigencies
>>of the war on drugs. (See e.g. Wisotsky, Exposing the War on
>>Cocaine: The Futility and Destructiveness of Prohibition, 1983
>>WISCONSIN LAW REVIEW 1305, 1418-1420.)
>> The Fourth Amendment has been so watered down that the search
>>of a person for evidence of drug use--without any evidence of
>>drug use, without any individualized suspicion--is, in the words
>>of Justice Scalia, "a kind of immolation of privacy and human
>>dignity in symbolic opposition to drug use." (National Treasury
>>Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384 (No. 86-
>>1879, March 21, 1989)).
>> By this time, you must be wondering if the Bar Association
>>turned this program over to some radicals who cooked up the
>>inflammatory title, "Is the Bill of Rights a casualty of the war
>>on drugs?" Well, a fairly conservative newspaper, USA Today, on
>>November 15, 1989 entitled its lead, cover story "The War on Drugs-
>>-Are Our Rights on the Line?" On the cover was a photograph of the
>>Broward County, Florida Sheriff manufacturing crack cocaine to sell
>>in stings of drug buyers. The subheadline is "Some Worry Police
>>Out of Control." The story begins,
>> "As the war on drugs intensifies, there is growing
>> concern that the battle is claiming an unintended victim,
>> our Constitutional rights. Emboldened by recent Supreme
>> Court rulings, police across the U.S.A. are adopting
>> aggressive tactics including neighborhood sweeps, no-
>> knock searches, reverse stings and property seizures.
>> 'I've lived through a lot of crime crises but we've never
>> gone out of control like this,' says University of
>> Michigan law professor Yale Kamisar, an expert on police
>> searches."
>> "In Detroit, police raided a food market in a drug
>> neighborhood, held the owner and seized his profits after
>> dogs sniffed cocaine on three one dollar bills in his
>> cash register. Quoting Denver Federal Judge Richard
>> Matsch, a Nixon appointee, 'I wonder where the United
>> States is headed. My concern is that the real victim of
>> the war on drugs might be the Constitutional rights of
>> the American people.'"
>> The Fourth Amendment, in its requirement that warrants
>>"particularly describe" the place to be searched and the objects
>>of the search requires that the information that sustains a search
>>be recent, Rugendorf v. U.S. (376 U.S. 528 (1964)), Sgro v. U.S.
>>(287 U.S. 206 (1932)). If an informant tells a police officer,
>>"You know, it seems to me that last winter I remember that Joe had
>>some marijuana on the table in his living room," it is not
>>permissible to rely on that information as the basis for a search
>>today to find marijuana.
>> Now consider the case reported in the article in USA Today,
>>>from Hudson, New Hampshire. At 5:00 a.m., August 3, 1989, police
>>came to the home of Bruce Lavoie, 34, a machinist with a wife and
>>three children. Without announcing themselves and without evidence
>>that Lavoie might be armed, police smashed the door with a
>>battering ram. Police had a search warrant based in part on an
>>informant's tip that was 20 months old. "As he rose from his bed,
>>apparently resisting the intruders, Mr. Lavoie was fatally shot as
>>his son watched. A single marijuana cigarette was found."
>> The casualties are not just abstractions, they have children,
>>now orphans, who will never feel their father's hugs again, all
>>innocent victims of the war on drugs. Incidentally, pickets later
>>defending the police use of deadly force carried signs reading,
>>"Druggies have no rights."
>> The Fifth Amendment sets forth many rights and procedures
>>including the prohibition against depriving any person of "life,
>>liberty or, property, without due process of law." In the 1986
>>Anti-Drug Abuse Act, Congress created a scheme of mandatory
>>sentences in drug cases (which I played a major part in drafting).
>>Two levels of mandatory sentences were set forth for transactions
>>in quantities of drugs greater than certain threshold quantities
>>which was intended to give U.S. Attorneys the direction to focus
>>on the highest level traffickers, and not waste time on the small
>>fry. Unfortunately the enacted thresholds, as watered down by the
>>Senate and in conference, are no longer based on the realities of
>>the drug marketplace. They were adopted without consideration of
>>their effect in sentencing real defendants, without consideration
>>of the effect on prison populations, and without study of their
>>potential effectiveness in deterring drug trafficking or drug use.
>> Now those mandatory penalties are used to coerce plea
>>bargains. They give prosecutors the power to say, "Here's your
>>choice: I can charge you with this offense which carries a
>>mandatory sentence. If you go to trial and you lose, you will get
>>a mandatory 10 years without parole up to life imprisonment for a
>>first offense (21 U.S.C. 841(b)(1)(A). (Congress specifically
>>prohibited parole in these kinds of cases.) Alternatively, if you
>>plead guilty to this lesser included offense which only carries a
>>maximum of 20 years, cooperate with us by becoming an informant for
>>us, we'll recommend a lower sentence in the guidelines such as five
>>years or something like that (21 U.S.C. 841(b)(1)(C)."
>> Very simply, faced with that kind of choice, a guilty pleas
>>is coerced, and the fifth amendment protection against denial of
>>due process of law is lost.
>> Let's think of another example of the erosion of the fifth
>>amendment protection. Due process in criminal cases includes the
>>presumption of innocence, In re Winship (397 U.S. 358, 90 S.Ct.
>>1068 (1970)). However, in drug cases, Congress granted to the
>>government the power to seize the property of suspects in advance
>>of trial. Indeed, in advance of indictment (21 U.S.C. 853(e)).
>> Another way in which due process is denied and the accused
>>are unable to get a fair trial in some drug cases is by means of
>>the "megatrial." Under the continuing criminal enterprise section
>>of the Controlled Substances Act (21 U.S.C. 848) and RICO, the
>>Racketeer Influenced and Corrupt Organizations Statute (18 U.S.C.
>>1961), there are monstrous trials, in which a score of defendants
>>are tried together in dozens of counts of indictments alleging
>>hundreds of different acts. Former Chief Judge Jack Weinstein of
>>the Eastern District of New York in his opinion in U.S. v. Gallo
>>spelled out how putting many defendants together in a "megatrial"
>>undermines the presumption of innocence (National Law Journal, Dec.
>>7, 1988 at 13). If the government accuses twenty Italian-American
>>men with being members of an organized crime family and requires
>>them to sit together at the same table in a courtroom for half a
>>year and presents a continuous stream of testimony about
>>conversations between and about Italian surnamed citizens, what
>>jury isn't going to believe that they are all members of the
>>"Mafia?" Even when the evidence only applies to a few defendants,
>>the innocent defendants are the victims of "spillover prejudice."
>> Another megatrial, the "Pizza Connection" heroin trial (U.S.
>>v. Badalamenti) in New York, lasted over 17 months. There were
>>something like 21 defendants. The name of one defendant was not
>>mentioned in the evidence or testimony until six months had
>>elapsed. How does someone defend oneself in a megatrial? How can
>>a jury process evidence in a complex trial that takes 17 months and
>>sort the truth from the lies in dozens of counts? How can due
>>process of law be said to exist in that situation? Yet these
>>abuses are being tolerated in the prosecution of the war on drugs.
>>The casualties include thousands of accused (including some who are
>>innocent) with good defenses, who rightly feared that the risk of
>>conviction coupled with mandatory penalties made a negotiated
>>guilty plea look more attractive.
>> The Sixth Amendment, among many specific rights, guarantees
>>that "the accused shall enjoy the right ... to have the assistance
>>of counsel for his defence." Yet even such a fundamental right is
>>under attack by the government and the courts in the course of the
>>war on drugs. In U.S. v. Morrison (449 U.S. 361 (1981)), Drug
>>Enforcement Administration special agents knowingly met with the
>>defendant, without counsel being present, to denigrate counsel's
>>ability and threaten conviction, thus invading and undermining the
>>lawyer-client relationship. Yet the Supreme Court said a sixth
>>amendment violation could not be established without a "showing of
>>prejudice" to the outcome (in effect requiring the defendant to
>>lose)--thus weakening the protection of an individual's right to
>>counsel.
>> Congress has also joined the assault on the right to counsel.
>>It gave prosecutors the power to seize the fees of the attorneys
>>who represent the accused in drug cases. Justice Blackmun in
>>describing this law said "Had it been Congress' express aim to
>>undermine the adversary system as we know it, it could hardly have
>>found a better engine of destruction than attorney's-fee
>>forfeiture." Caplin & Drysdale, Chartered v. U.S. (dissenting
>>opinion, 109 S.Ct. 2667, 2674 (1989)).
>> In order to seize those fees, the government has begun to
>>issue subpoenas to defense attorneys about their fees. This forces
>>the defense attorney to become a witness in the government's
>>forfeiture case, and forces the attorney to withdraw as counsel.
>>This has been found to give the government the ability to eliminate
>>highly competent counsel from trying certain cases.
>> Another frightening example is that the government is
>>demanding and attempting to force attorneys to provide it with
>>evidence against their clients in circumstances rationalized by
>>the war on drugs, but which involve all types of cases.
>> This is the background: under the Currency and Foreign
>>Transaction Reporting Act of 1970 (also known as the Bank Secrecy
>>Act, 31 U.S.C. 5311 et seq.), if you went to a bank and made a
>>$10,000 or larger cash transaction, the bank had to report that
>>transaction to the Treasury Department. But if you bought a large
>>ticket item like a car and paid cash, that did not have to be
>>reported to Treasury. Now the Internal Revenue Code of 1986 (26
>>U.S.C. 6050I) requires all such cash transactions to be reported
>>to IRS. It enables the government to get intelligence about people
>>who buy a Mercedes-Benz with $55,000 in cash. Then the government
>>specifically applied this reporting requirement to criminal defense
>>lawyers. The special tax return under this section requires
>>extensive detailing of who the customer is and the nature of the
>>transaction. Look at how this works for lawyers and their
>>prospective clients.
>> Let's assume that you believe that you may be under
>>surveillance or investigation by the government. You keep hearing
>>mysterious clicks on your telephone, and you think you are being
>>followed. You go to a famous criminal defense attorney for advice
>>and possible representation, and she wants $10,000, by no means an
>>unheard of fee. You borrow a few thousands dollars from three or
>>four close friends and relatives, you pawn your stereo, and pay the
>>attorney the $10,000 in cash you've collected. The attorney
>>however sends the required form to the Internal Revenue Service
>>about you. You haven't been indicted. You don't even know if
>>you're being investigated. Your attorney sends government
>>investigators a form saying, "My name is Mary Smith, famous
>>criminal defense lawyer. I've just been retained by Mr. Jones, who
>>paid me $10,000 in cash to represent him."
>> Does anybody doubt that lights and bells will go off at the
>>IRS when that report comes in? Of course they will. If there is
>>no investigation pending on Mr. Jones, IRS or another Federal
>>agency will put an agent on him right away. The Anti-Drug Abuse
>>Act of 1988 (sec. 7601(b)) created a major exception to the usual
>>rule of confidentiality of income tax information to permit the
>>return filed under 26 U.S.C. 6050I to be turned over to any Federal
>>law enforcement agency (26 U.S.C. 6103(i)(8)). How can the
>>traditional protection of counsel of choice and the right to have
>>counsel continue to exist if counsel are put in the position of
>>becoming informants against their own clients?
>> The Washington Post reported on November 15, 1989, that nine
>>hundred letters had been sent to criminal defense lawyers around
>>the country by IRS saying, "We want more information about your
>>clients." Quite justifiably, criminal defense lawyers are in an
>>uproar--but so should everyone who values the Sixth Amendment
>>right to counsel.
>> The war on drugs has also become the pretext for an assault
>>on the criminal defense bar itself. Sentencing of Federal
>>defendants is pursuant to guidelines promulgated by the U.S.
>>Sentencing Commission, but a judge may impose a sentence lower than
>>the stated guidelines by stating the reasons. However, a court can
>>impose a sentence below a statutory mandatory minimum sentence
>>(which Congress has created almost exclusively for drug cases) only
>>upon the motion of the prosecutor that the defendant provided
>>"substantial assistance in the investigation or prosecution of
>>another person who has committed an offense." (18 U.S.C. 3553 (e)).
>> Consider the temptation upon the defendant awaiting sentence
>>in such a drug case to find somebody, anybody, who they can inform
>>against, in order to induce the prosecutor to move for a sentence
>>reduction below the mandatory 5, 10 or 20 years. In fact, many
>>defendants are secretly encouraged by the government to attempt to
>>incriminate their own defense counsel.
>> The Seventh Amendment guarantees that "In suits at common law,
>>where the value in controversy shall exceed twenty dollars, the
>>right of trial by jury shall be preserved." If you think about it
>>a second, this right is essential for protecting other rights. If
>>you want to bring a Federal civil rights case, for example, you
>>have a right to a jury trial under the Seventh Amendment. If you
>>are the victim of an environmental hazard, or product liability,
>>or any kind of case in which you have been harmed, you have a
>>guaranteed opportunity to sue.
>> The Sixth Amendment guarantees that criminal trials must be
>>"speedy," consequently they have priority over almost every other
>>matter. Recently a Federal Magistrate in Los Angeles told me that
>>in the United States District Court for the Central District of
>>California, the volume of drug cases is so great the judges are
>>concerned that soon they will be unable to try any civil cases.
>>The number of attorneys in the U.S. Attorney's criminal division
>>has just been doubled which promises a new influx of drug cases,
>>but few new judgeships are being created. The Supreme Court of
>>Vermont declared a six month moratorium on all civil jury trials.
>>(Administrative Directive #17, "Temporary Postponement of Civil
>>Jury Trials." January Term, 1990. Signed by all 5 justices on
>>January 11, 1990, effective January 22, 1990. All civil jury
>>trials for which jurors have not been drawn are postponed until
>>after July 1, 1990. The moratorium was amended on March 28, 1990
>>when it appeared that the legislature would appropriate additional
>>funds.) Many other federal and State courts are in a similar bind.
>> How can your right to a civil jury trial--any kind of civil
>>litigation--be maintained if the docket is jammed with drug
>>cases? Obviously, that right is lost.
>> The Eighth Amendment guarantees that "Excessive bail shall
>>not be required,...nor cruel and unusual punishments inflicted."
>>In 1984, in the Comprehensive Bail Reform Act, the Congress said
>>that in most felonious drug cases (see 21 U.S.C. 841(b)), there is
>>a rebuttable presumption that defendants are dangerous to the
>>community and can be held without bail (18 U.S.C. 3142(e)). Those
>>provisions are being used throughout the federal court system to
>>detain accused persons before trial. This undermines their ability
>>to work on their defense, to assist their counsel and to obtain a
>>fair trial.
>> Regarding the prohibition against cruel and unusual
>>punishment: The Supreme Court has struck down, as cruel and
>>unusual punishment, the death penalty for crimes that do not
>>involve an intent to kill (Coker v. Georgia, (433 U.S. 584, 1977,
>>rape); Enmund v. Florida (458 U.S. 782, 1982, co-defendant in a
>>robbery and murder); Cabana v. Bullock, (474 U.S. 376, 1986,
>>instructions to jury require finding an intent to commit murder).;
>>cf. Tison v. Arizona (481 U.S. 137, 1987).
>> However, on June 28, 1990 the Senate, by a 66 to 32 vote,
>>adopted the D'Amato amendment to S. 1970 providing for the death
>>penalty for a person convicted of any drug violation committed as
>>part of a large scale continuing criminal enterprise (21 U.S.C.
>>848(b) and (c)(1) (involving for example 30,000 kilograms of
>>marijuana, or only 1.5 kilograms of cocaine base, 300 grams of LSD,
>>30 kilograms of heroin, etc.), even where no homicide has been
>>committed. While these are significant quantities, by no means are
>>they earth-shaking quantities. And considering the purity of the
>>drug is not considered, a mid-level operative may be chargeable
>>with a capital offense. When it comes to fighting the war on
>>drugs, the Senate is prepared to inflict punishments the Supreme
>>Court has held are cruel and unusual. Only the presence of
>>controversial amendments to ban semi-automatic assault weapons and
>>a provision in the House crime bill to allow the introduction of
>>evidence of racial disparity in the imposition of the death
>>penalty, combined with the exhaustion of Congress in the October
>>1990 budget deadlock, resulted in the elimination of these death
>>penalty provisions in the enacted legislation (S.3266).
>> Unless the political climate is forced to change, it is only
>>a matter of time before the death penalty for these types of
>>offenses will be imposed. (Parenthetically, the U.S. Supreme Court
>>heard oral argument on November 5, 1990 in Harmelin v. Michigan
>>(No. 89-7272), on the question of whether the Michigan law
>>requiring a sentence of mandatory life in prison without
>>possibility of parole for the simple possession of more than 650
>>grams of cocaine constitutes cruel and unusual punishment. The
>>only other offenses in Michigan which carry the same sentence are
>>first degree murder, as well as possession of cocaine with intent
>>to deliver, and distribution of cocaine.)
>>PART III
>> Let me skip the Ninth and Tenth Amendments for a moment. The
>>Thirteenth Amendment prohibits slavery and involuntary servitude,
>>and the Fourteenth Amendment, guarantees equal protection of the
>>laws. Those amendments have been read to prohibit government
>>behavior which continues the badges of slavery--the treatment of
>>African American citizens as second class citizens (See City of
>>Memphis v. Greene, 451 U.S. 100, 126 (1981). When the police get
>>the license to crack down on suspects as part of the war on drugs,
>>in what communitzy."= they stop people without any cause
>>whatsoever? In what communities do the drag nets take place? You
>>know the answer. Overwhelmingly, it is in minority communities.
>>The Los Angeles Times ("Blacks Feel Brunt of Drug War", April 22,
>>1990, p.1) has shown that this is the case throughout the nation.
>> Consider the National High School Senior Survey of the
>>National Institute on Drug Abuse shows white youth use drugs at
>>higher rates than black youth. However, the U.S. Office of
>>Juvenile Justice and Delinquency Prevention reported that minority
>>youth detained for drug offenses increased by 71 percent between
>>1983 and 1985. The rate of detention of white youth was stable.
>>This is typical of how the burden of enforcement of the drug laws
>>is inflicted on Blacks, Hispanics and Native Americans. Even
>>though many more pregnant white women use cocaine than pregnant
>>Black women, 80% of all of the arrests of women for endangering
>>their fetus or delivering cocaine to their fetus are of Black
>>women.
>> The spirit of the 13th and 14th Amendments is violated
>>every day because the police are carrying out the war on drugs much
>>more heavy-handedly in communities of color. Equal protection of
>>the law is being denied.
>> Returning to the Bill of Rights.
>> The Ninth Amendment provides that "The enumeration in the
>>Constitution of certain rights shall not be construed to deny or
>>disparage others retained by the people." What are those other
>>rights? Those are every other right.
>> Now, when we think about rights, let's ask, "where do rights
>>come from?" Do our rights come from Constitutional amendments?
>>Are those our only rights? Or does the existence of our rights
>>precede the First Amendment? Wasn't it the Declaration of
>>Independence said that "we hold these truths to be self evident"
>>-- that we are "endowed by our Creator with certain unalienable
>>rights?"
>> Those rights don't flow from Congress. Uncle Sam doesn't give
>>us our rights. We had our rights before the government was
>>created.
>> Consider the right to vote. The Fifteenth and Nineteenth
>>Amendments to the Constitution say that the right to vote shall
>>not be abridged on account of race or on account of sex. Did those
>>rights come into existence because white males suddenly thought it
>>would be a neat idea to give those rights to the rest of us? Did
>>those rights come into existence because Congress finally decided
>>to vote for them? No. Those rights always existed. They were not
>>recognized by the society. But those rights were always there.
>>Was it Black Americans or women that changed in 1870 or 1920? No,
>>society changed--it recognized that a right which existed, the
>>exercise of which was being denied, must now be guaranteed.
>>Society's recognition of our rights is slow, it evolves.
>> I argue that there is a right to use drugs. Last night a few
>>of you drank alcohol--a drug. Today, a few of you have used
>>nicotine, a drug. We don't urine test people to prevent them from
>>using nicotine. We don't lock up the nicotine dealers. Most of
>>us have had caffeine today, a very powerful central nervous system
>>stimulant. We drink it in very carefully measured dosages, usually
>>in common six ounce ceramic cups or ubiquitous styrofoam cups.
>>Coffee cups are drug paraphernalia. A wine glass, a beer bottle,
>>they are drug paraphernalia. An ashtray is drug paraphernalia.
>> We use drugs in our society legally and illegally to an
>>enormous degree.
>> Why are the drug laws violated by tens of millions of our
>>fellow citizens? Because they intuitively know that they have a
>>right to engage in conduct that gives them pleasurable sensations
>>even though it is prohibited--that those laws are unjust.
>> Many of us in this audience, probably a majority, recognize
>>a woman's right to control her reproductive freedom, to control
>>her reproductive tissues, to control her womb. How is the right
>>of all us to control our brains any less? Don't we have a right
>>to control our cerebral tissue?
>> To say that exercise of personal control over something so
>>intrinsically personal as one's brain and central nervous system
>>is not a right reserved under the Ninth Amendment means that the
>>Ninth Amendment is almost meaningless.
>> The Tenth Amendment says that "the powers not delegated to
>>the United States by the Constitution, nor prohibited by it to the
>>States are reserved to the States respectively, or to the people."
>> The powers not delegated to the United States by the
>>Constitution are reserved to the people. Where is the power in
>>Article I, Section 8 of the Constitution that allows Congress to
>>say, "We declare that your brain is off limits to you. You cannot
>>use those cells in your brain that opium can affect, or that
>>marijuana stimulates. Your brain is not really yours to control.
>>The space between your ears--that's not really yours to control.
>>We're the Congress. That's our space. You are prohibited from
>>using your brain in unapproved ways." Is this a power that the
>>Congress has? If so, where did it get it and when?
>> Let's think about the First amendment broadly for a moment,
>>and think about the policy that underlies the First Amendment.
>>Ultimately, the First amendment is designed to guarantee our right
>>to make up our minds. ("Those who won our independence believed
>>that the final end of the State was to make men free to develop
>>their faculties . . . . They valued liberty both as an end and as
>>a means. They believed liberty to be the secret of happiness and
>>courage to be the secret of liberty. . . ." Whitney v. California,
>>274 U.S. 357 (1927) (concurring opinion of Justice Brandeis, joined
>>by Justice Holmes, 274 U.S. at 375). Brandeis defended the
>>"freedom to think as you will and to speak as you think" as
>>"indispensable to the discovery and spread of political truth. .
>>.." (274 U.S. at 375).)
>> How do our minds work? As you hear me speaking or if you read
>>this, there are biochemical changes taking place in your brain.
>>That's what's happening. Your brain is changing chemically. If
>>you remember what I say or wrote, your brain has been permanently
>>changed.
>> In fact, what I'm saying is more dangerous than any drug you
>>can take--much more dangerous. You might get angry at your
>>members of Congress for deliberately or carelessly embracing a
>>policy that systematically degrades your hard won freedoms and
>>liberties. You might protest or take action and challenge the
>>government. Even though what I'm saying is very dangerous because
>>it's affecting your brain, and affects your ability to make up your
>>mind about drug laws, what I'm saying is protected by the First
>>Amendment.
>> Do you have a right to listen or a right to read? Even though
>>the First Amendment doesn't explicitly say "the freedom to listen
>>shall not be abridged", isn't it obvious that you have a right to
>>listen. If so, in material terms you have a right to chose to have
>>your brain changed by what you want to listen to or what you read.
>> Two centuries ago the King of England did not try to prevent
>>Americans from directly using their brains. He did what he could
>>do, which was to punish seditious speech and treasonous writings
>>-- things which profoundly influenced the minds of revolutionaries
>>through the chemical changes they caused in their brains.
>> Today, we know how the brain functions as a biological
>>processor of chemicals. But since Congress has by law acted to
>>intervene in your choice of brain-effecting chemicals, forbidding
>>you from choosing certain drugs that millions of Americans desire,
>>we must ask, "What is Congress' constitutional power for doing
>>this?"
>>
>> Congress' legislative powers are set forth in Article I,
>>Section 8 of the Constitution. The authority to ban drugs is no
>>longer based on the power to tax, as it was from 1914 until 1970.
>>Congress now asserts its power to forbid the use of drugs in the
>>Controlled Substances Act (21 U.S.C 801; titles II and III of the
>>Comprehensive Drug Abuse Prevention and Control Act of 1970, Public
>>Law 91-513.) is based on it's power to regulate interstate and
>>foreign commerce. (United States v. Scales, 464 F.2d 371,373 (6th
>>Cir. 1972); United States v. Montes-Zarate, 552 F.2d 1330, 1331
>>(9th Cir. 1977), cert. denied, 435 U.S. 947 (1978).) Now what,
>>pray tell, does that have to do with your brain?
>> Congress recognized that if you grew marijuana in your
>>backyard for your own use, there would be a very strong claim that
>>such activities did not affect interstate or foreign commerce.
>>Therefore Congress asserted that "local distribution, and
>>possession, nonetheless have a substantial and direct effect upon
>>interstate commerce" and declared that it could not "feasibly
>>differentiate" or "distinguish" purely intrastate activity with
>>respect to drugs from the interstate or foreign commerce in drugs.
>>Therefore, it claimed jurisdiction over drugs grown in your
>>backyard, or always possessed by you in local, intrastate commerce.
>>(21 U.S.C. 801(3),(4),(5),(6)).
>> Now, is your brain interstate commerce? Is your bedroom
>>interstate commerce?
>> Consider the implications of this expansion of the
>>Congressional power to regulate interstate commerce. Beginning in
>>1933, Congress at the urging of President Franklin Delano Roosevelt
>>asserted an enormously expanded role in regulating interstate
>>commerce. Conservatives considered it an almost revolutionary
>>expansion. Only after a number of deaths and resignations, and the
>>electoral sweep of 1936 was this enormously expanded claim of
>>Federal power under the interstate commerce clause upheld by the
>>Supreme Court (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
>>(1937)).
>> We therefore accepted the expansion of the power of Congress
>>to regulate interstate commerce to the maximum. Even if an
>>individual's act is trivial, that is irrelevant if it is a type of
>>act, when cumulated with other similar acts, might reasonably be
>>deemed by the Congress to have substantial national consequences.
>>(See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v.
>>McClung, 379 U.S. 294 (1964); Perez v. United States, 402 U.S. 146
>>(1971)).
>> There was also created the theory that Congress could enact
>>prohibitions to "protect" interstate commerce. The Fair Labor
>>Standards Act of 1938 excluded from interstate commerce goods made
>>in plants with did not meet Federal standards for wages and hours
>>of employees. (This was upheld in United States v. Darby, 312 U.S.
>>100 (1941): "Congress, following its own conception of public
>>policy concerning the restrictions which may appropriately be
>>imposed on interstate commerce, is free to exclude from [such]
>>commerce articles whose use in the states for which they are
>>destined it may conceive to be injurious to the public health,
>>morals, or welfare..." (312 U.S. at 114).) In the 1960's Congress
>>used the interstate commerce power to guarantee civil rights in
>>interstate travel and accommodations. (e.g. Heart of Atlanta
>>Motel, Inc, v. United States, 379 U.S. 241 (1964)).
>> It is time to consider, where does interstate commerce end?
>>I'm standing here in this conference center, a facility of
>>interstate commerce. I'm carrying an airplane ticket to
>>Washington. My pocket is full of credit cards, tools of interstate
>>commerce. However, I spent the night here, I've had a beautiful
>>hike, I've had a couple of meals here. Am I actually here in
>>Colorado, or am I still in the limbo of interstate commerce? If
>>I am still in interstate commerce now, when do I leave interstate
>>commerce? Can I ever leave interstate commerce? (Notably, Justice
>>Rehnquist suggested that "it would be a mistake to conclude that
>>Congress' power to regulate pursuant to the Commerce Clause is
>>unlimited. Some activities may be so private or local in nature
>>that they simply may not be in commerce. Nor is it sufficient that
>>the person or activity reached have some nexus with interstate
>>commerce." Hodel v. Virginia Surface Mining & Reclamation Assn.,
>>Inc., 452 U.S. 264 (1981) (concurring opinion at 310). Departing
>>>from the post New Deal line of cases he concluded, the commerce
>>power "does not reach activity which merely 'affects' interstate
>>commerce. There must be a showing that a regulated activity has
>>a substantial effect on that commerce." 452 U.S. at 312. (Bold in
>>the original, underlining added.) So far, no other justices have
>>joined this argument.)
>> But if I am in interstate commerce, what about those of you
>>who have not left your home state to come to this conference. Are
>>you in interstate commerce?
>> If interstate commerce can constitutionally be claimed to be
>>the basis for anything that Congress wants to regulate, what part
>>of our lives is not regulatable by Congress? If Congress can use
>>this power this broadly in the regulation of our brains, then the
>>Federal government is omnipotent and the notion of constitutional
>>checks and balances is non-existent.
>> If our brain is regulatable as interstate commerce, then
>>certainly our wombs and genitals are too, aren't they, and our
>>blood, our heart, our lips, our fingers, our eyes, and our ears?
>>Is there any part of us that is not in interstate commerce?
>> I believe that at some point the tissues inside our skin must
>>be totally outside interstate commerce, or else Congress has
>>unlimited power to tell us to do whatever it wants us to do.
>> It is this, it seems to me, that is the most dangerous heart
>>of the war on drugs and which strips the Ninth and Tenth Amendments
>>of their meaning. Essentially the legal basis for the war on drugs
>>depends upon the assumption of total power by the Congress and the
>>Federal Government to regulate the most intimate aspects of our
>>lives, the very dreams that we have. And the propaganda arm of the
>>war on drugs has been successful persuading us to unwittingly
>>surrender this vital power over ourselves to the Federal
>>government. Indeed the propaganda of the urgency of the war on
>>drugs has been so successful, many of our fellow citizens
>>consciously believe we must surrender ourselves for the good of the
>>state.
>> Seen in this light, the war on drugs is the corner stone of
>>an as yet unbuilt edifice of totalitarianism.
>> Challenging the war on drugs is the most important issue
>>facing civil liberties and the preservation of the Bill of Rights.
>> You are lawyers. You know that aside from the questions of
>>due process and constitutionally required criminal procedure, the
>>criminal justice system is going down the tubes. The American Bar
>>Association issued a special report, Criminal Justice in Crisis,
>>which found the criminal justice system is being overwhelmed with
>>drug cases. (CRIMINAL JUSTICE IN CRISIS, American Bar Association,
>>Section on Criminal Justice, Special Committee on Criminal Justice
>>in a Free Society, 1988, p.6.) It functions as an assembly line.
>>No longer does individualized justice takes place. The attorneys -
>>- prosecutors, defense counsel, and judges--are mere mechanics
>>that keep the machine of arrest and imprisonment functioning.
>> I won't discuss today the many serious costs our society is
>>suffering from undertaking the prohibition approach to the problem
>>of drugs--the increased crime, the spread of disease, the
>>economic price of enriching organized crime by $100 billion per
>>year. I won't analyze our national drug control strategy to
>>explain how it cannot succeed in stopping the cultivation and
>>shipment of drugs into the United States. Someone who might be
>>indifferent to the hits taken by the Bill of Rights, should be
>>alarmed by the problems caused our nation by drug prohibition
>>because they effect everyone--in their pocketbook, in their
>>personal safety, in the availability of quality health care.
>> The organized bar, such as the Colorado Bar Association, is
>>one of the institutions in the society that is sensitive to the
>>Bill of Rights implications of the war on drugs. Next year will
>>be the bicentennial of the ratification of the Bill of Rights.
>>Many bar associations are planning programs to commemorate the Bill
>>of Rights. Now is the time for bar associations to begin to
>>educate the public about the jeopardy our heritage of liberty faces
>>>from the war on drugs. If the bar fails to do this, who will do
>>it? If no one does it, then surely the celebration of the
>>bicentennial of the Bill of Rights on December 15, 1991 will be a
>>hollow exercise.
>> It should be obvious that all of these comments do not deny
>>that drug abuse is not a terribly tragic situation. As is
>>alcoholism. As are 300,000 annual deaths from tobacco and
>>cigarette addiction. Those are terrible things too. But we are
>>not going to solve any of these problems by allowing the war on
>>drugs to make our Bill of Rights into a shattered remnant of the
>>vital shield it once was.
The Front Line
>>Below follows a list of names of prisoners who would like to be written to
>>and who are in prison on extended internments due to the "War on Drugs."
>>None of these people harmed the person or the propertyof another, and they
>>are not in jail due to any violent act. There are over half a million
>>people in prison in the United States for possession or distribution of
>>Marijuana, LSD, Psyclosilbin and other related substances.
>>These prisoners generally serve longer terms than prisoners incarcerated
>>for rape, attempted murder, armed robbery and kidnaping. In fact, in the
>>most recent federal sentencing guidelines, the minimum sentence for
>>attempted murder with bodily harm was 6.5 years and the max was 8.1, while
>>the minimum sentence for LSD possession was 10.1 years with a max of 13.9.
>>I hope that you take the opportunity to write some of these people, because
>>it will be a truly educational experience for you. Not only will you get to
>>brighten up the day of someone who is in the most dismal situation
>>possible, you will learn a great deal about the enormous costs of the war
>>on drugs. Most who have written are fascinated at the similarities these
>>people have to the themselves or other people they know, and it is a big
>>eye opener from the commonly held view that all prisoners are animals to be
>>held in the utmost contempt. The most conservative estimate of the cost of
>>incarcerating these people is around 15 Billion dollars (which does not
>>include loss of their income to the economy or any incidental costs of
>>their being incarcerated such as welfare support to their families, etc..).
>>My greatest hope is that some of you will learn from this that the current
>>approach of locking up the drug offender is futile and begin to think about
>>approaches to this issue from a different perspective. Most importantly I
>>hope that the human costs of the War on drugs becomes painfully evident as
>>you see that these masses of people we are locking away DO have much to
>>offer and such a tragic waste of human resources are being squandered.
>>Certainly another avenue of addressing these people must be found instead
>>of the wholesale warehousing of non-violent offenders when we need these
>>resources in our penal system to protect us from the violent, predatory
>>criminals that make our streets and homes unsafe and those that put our
>>persons or property in jeopardy
>>Bill Taney, bta...@siu.edu..
>>Please write me with any questions, comments and suggestions--- Bill
>>01/24/95
>>-------
>>Michael Abbate 93-A-1647, CCF Main P.O. Box 2001,Dannemoro, NY 12929-2001
>>Kenneth Albert 68560, AVCF #3 Box 1000,Crowley, Co 81034
>>Keith Alper 93A4988, Box 51,Comstock, Ny 12821
>>Troy Anders 12881-076, FCI Laretto, PO Box 1000,Laretto, PA 15940
>>Glenn Anderson 13700-075, Dorm 4, PMB2000,Talledega, Al 37160-8799
>>Fred Anderson 02777-052, W-3-5841, FCI Ft. Dix Box 1000,Ft. Dix, NJ 08640
>>Mark Arnold B23220, Graham CC Box 500,Hillsboro, IL 62049
>>Jay Awada 254-083, PO Box 57,Marion, OH 43301-0057
>>Russell Baker 122259, Wharton Tract Unit, 800 Carranza Rd.,Vincetown, NJ 08088
>>Andrew Baker 1-A 242-027, RCI PO Box 7010,Chillicothe, OH 45601
>>Joe Balsis 893972, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>Tony Barkovich 82876-011, Dorm 4, PMB 2000,Talledega, Al 37160-8799
>>Scott Barna 47054-0004, Dorm 2, PMB 2000,Talledega, AL 37160-8799
>>Jennifer Barrett 10526-018, Cherokee B, P.O. Box 7006,Marianna, Fl 32447-7006
>>Edward Barrett 10609-078, FCI Texarkana - Dorm F, PO Box 7000,Texarkana,
>>TX 75505
>>Aaron Bartwnek 04120-068(S-126), FCI Laretto, P.O. Box 1000,Laretto, PA 15940
>>Matt Bergman 23160-086, PO Box 5000,Sheridan, OR 97378
>>Grace Bidmead 88187-011 (B), 5701 8th St. Camp Parks,Dublin, Ca 94568
>>Robert Billings 160200, ACC PO Box 538,Jefferson City, MO 65102
>>Robert Bird 149572, ACC PO Box 538,Jefferson City, MO 65102
>>Steve Blake 03188-088, Box 6000 FDC Unit A1,Ashland , KY 41105-6000
>>Frankie Boilwage 16213-018, Mon Unit - C, FPC Maxwell A.F.B. ,Mongomery,
>>Al 36112
>>Mark Bolston 03842-030, P.O. Box 4000,Springfield, MO 65801-4000
>>Paul Borkett 06684-067(A), Box 1000, FCI Allenwood,White Deer, PA 17887
>>Chris Bright 140210-V3B, H25-10 S.C.I, 5900 B.I.S. RD,Lancaster, OH 43130
>>Kirk Brown 28994-048, Box 2000, FCI Allenwood,White Deer, PA 17887
>>Jason Bryant A262-862, PO Box 56 State Rte 63,Lebanon, OH 45036-0056
>>Jeremy Cadle 218484, Housing-E2 1394, GCI - PC Drawer 130,Wewahitchka, Fl
>>32465-0130
>>Joe Calafactor 186318, SCU #21, 384 Eskimo Hill Rd.,Stafford, VA 22553
>>Michael Canode A-122465, New River Correctional, PO Box 333,Raiford, Fl
>>32083-0333
>>Matt Capelli 249-243, PO Box 69,London, OH 43140-0740
>>Jannet Carlyle 85017-011 (D), 5701 8th St. Camp Parks,Dublin, Ca 94568
>>Johnathon Carnes 922311, Box 473,Westville, In 46391-0473
>>Archie Carpenter 03197-030, PO Box 1500,El Reno, Ok 73036
>>Donnie Carroll 15046-057, FCI Estill, PO Box 599,Estill , SC 29918
>>Scott Carter 20169, PO Box 14,Concord, NH 03301
>>Brian Casey , PO Box 14,Concord, NH 03301
>>David Chevrette 24937-198, PO Box 2000, LECI,Lewisburg, PA 17837
>>Tim Cichon 036560-090, PO Box 700,Yankton, SD 57078
>>James Clark 43725-019, PO Box 33,Terre Haute, In 47808
>>Guy Clark , PO Box 70,Port Jarvis, NY 12953
>>John Clonts 192851, MCI-H AHU D-26, 18601 Roxbury Rd.,Hagerstown, MD 21746
>>Phillip Cockrell 11062-SC, HCI Box 1569,Lillington, NC 27546
>>Calum Coohey , P.O. Box 3000 Laurel B,Manchester, Ky 40962-300
>>Joe Cotten 202602, PO Box 488,Burkeville, VA 23922
>>Matthew Cross 92-B-1402, 135 State Street, PO Box 618,Auburn, NY 13021
>>R.A. Crutcher D59311, P.O. Box 4400-A4-126, Wasco State Prison,Wasco, CA
>>93280-4400
>>Michael Cummings CE-5311, B4-6917, 10745, Rt 18,Albion, PA 16475
>>Bill Cyr , 1 Right Way Path,Lanconia, NH 03246
>>Virgil Damon 160175, D-6 P.O. Box 66,CAPSHAW, AL 35742
>>David Davidson 063040-540, 19225 US Hwy 27,Clermont, Fl 34711-9025
>>Chuck Dean 920790 A3, P.O. Box 473,Westville, IN 46391-0473
>>Mike DeLuca 115772, W-1-B, PO Box 11401,Yardville, NJ 08620
>>Richard DeMello 83762-011, FDC Pleasanton J-1, 5675 8th St. Parks,Dublin,
>>CA 94568
>>Amy Derosiers , 1 Right Way Path,Lanconia, NH 03246
>>Eric Diamond 02279-025, D-210 Room 201, P.O. Box 1000,Duluth, MN 55814
>>Rodger Dowling 02675-039, 3600 Guard Rd.,Lompac, CA 93436
>>Paul Dryburg 01759-028, FMI-PMB 4000,Rocheter, MN 55903-4000
>>John Durkin 150300, MCRCF PO Box 2000,Wartburg, TN 37887
>>James Evans 14902-057 (C), 15801 SW 137 Ave., MCC,Miami, Fl 33177
>>Phil Farley 146877-A3-227, 901 Corections Way,Jarratt, Va 23870-9614
>>Seth Ferranti 18205-083, FCI Manchester, P.O. Box 4000,Manchester, Ky 40962
>>Ron Fiala 242-128, RCI PO Box 7010,Chillicothe, OH 45601
>>Christopher Foster B25890, MCC - PO Box 711,Menard, Il 62259
>>Jody Gabriele CE-5311, B4-6917, 10745 Rt 18,Albion, PA 16475
>>Sally Gardner 902089, 1 DOC/ACU Box 95,Edenburg, IN 46124
>>Joe Garrett 177292, Rt. 1, Box 207-C,Lawrenceville, VA 23868
>>Richie Geibel 222923, Bayside State Prison, PO Box F-2,Leesburg, NJ 08327
>>Roberta Goodman 128662, TPW D-1, 3881 Stewarts Ln,Nashville, TN 37218-3397
>>Mike Gough 214-634, CCI P.O. Box 5500,Chillicothe, OH 45601
>>Steve Hack 920298, Box 473,Westville, In 46391-0473
>>Jim Hall 190412-9-B, WMCC RR5 Box 1E,Cameron, MO 64429
>>James Hamilton 232952, ECI - 30420 Revell's Neck Rd.,Westover, MD 21871
>>Pat Hamlin 10399-068, Box 1000,morgantown, WV 26507-1000
>>Steve Haulk MHE4, 10471-7L, 1300 Western Blvd.,Raleigh, NC 27606
>>David Helm 871299, Box 473,Westville, IN 46391-0473
>>Tim Henderson 926316, IN D.O.C., ISP Box 41,Michigan City, IN 46360
>>Michael Hershman 05582424, RR#2, Box 9000,Safford, Az 85546
>>Johnny Higgins 891138, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>TJ Hoekema , 206 E. Elm "A",Tyler, TX 75702
>>Tobin Holbrook A-23, 500 Western Md Pkwy,Hagerstown, MD 21740
>>Mike Holloman 5414483, 2500 Westgate,Pendleton, OR 97801
>>Tonja Hornberger B-22979, Box 5001,Dwight, IL 60420-5001
>>Brian Hughes , IHD 1315 Pacific Ave., Atlantic City, NJ 08401
>>Michael Hussey , P.O. Box 565,Bellevica, Ma 01821
>>Jeff James CJ-6816, 1600 Walters Mill Rd.,Somerset, PA 15510
>>Chris Jenkins 120803, R-1-C, PO Box 11401,Yardville, NJ 08620
>>Joseph Jenkins 22597, CUCF - PO Box 550,Gunnison, UT 84634
>>Julian Jones , D-11 P.O. Box 66,Capshaw, Al 35742
>>Troy Jones 49309-079, FPC Big Spring, 1900 Simler Ave. -Camp,Big Spring,
>>TX 79720
>>Pat Jordan 13356-075, PO Box 5000,Sheridan, OR 97378
>>Douglas Junco 9B-A-1077, CCF Main P.O. Box 2001,Dannemoro, NY 12929-2001
>>Keith Kanuck 32875-008, FPC - Box 5000,Florence, CO 81226
>>Chris Kasper 59546-079, FPC Big Spring, 1900 Simler Ave. -Camp,Big Spring,
>>TX 79720
>>Pat Keating 146-153, PO Box 511,Columbus, OH 43216
>>Bill Kellner EF 305420, Rogers B-2, P.O. Box 53000,Reidsville, Ga 30453
>>Randall Kelly EF299998, Buress Corr. Training Center, PO Box 5849,Forsyth,
>>GA 31029
>>William(Billy) Kempthorne 107092-1417, ASP Winslow - Coronado, 2100 S. Hwy
>>87,Winslow, AZ 86047
>>Timothy Kenlein 01666-112 (Teflon), RR #2 Box 9000,Safford, AZ 85546
>>John Kim , PO Box 1427,Chesapeake, VA 23160
>>Michael King 229842, ACSU/NSP, PO 2300,Newark, NJ 07114
>>LaVern Kinney EF 26981, Rogers C-1, P.O. Box 53000,Reidsville, Ga 30453
>>Rich Kirkwood 88A6049, PO Box 700, Showagnnkee Corr Facility,Wallkill, NY
>>12589
>>Lee Roy Kohne 94-2076, 9896 Murry Ridge Rd.,Elyria, OH 44035
>>Steven Kolesar 283-581, H25-10 S.C.I, 5900 B.I.S. RD,Lancaster, OH 43130
>>Ben Krome J-08013, P.O. Box 9 (250-1-55Y) Avenal State Prison, Avenal, CA
>>93204
>>Jim Kuchynka 868870, P.O. Box C-4A23, ASP Yuma,Yuma, AZ 85366-0003
>>Duane Kuehl 854988, INDOC/IN Reformatory,Pendleton, IN 46064
>>Rob Lake 186452, ACC PO Box 538,Jefferson City, MO 65102
>>Tim Lanum 241-794, PCI - PO Box 209,Orient, OH 43146
>>Ralph Larson 169675, STW - MCF Stillwater Prison, Box 55,Stillwater, MN 55082
>>Floyd Layne 140-868, CCI P.O. Box 5500,Chillicothe, OH 45601
>>Stephen Lenox 12051-018, Box 1000,Milan, Mi 48160
>>David Lewis 32813-054-4A, Box 2000, FCI Allenwood,White Deer, PA 17887
>>Robert Lohr 01559-087, FCI Schuylkill, PO Box 759,Minersville, PA 17954-0759
>>Bruce F. Lord 105642-1084, ASP Winslow- Coronado, 2100 S. Hwy 87,Winslow,
>>AZ 86047
>>Aaron Lowden 09540-036, North Whitfield, ME 04354
>>Douglas MacMillan 60072-080, 3705 W. Farm Rd.,Lompac, CA 93436
>>Gary Malletz 93A4517, Franklin Corr. Facility, PO Box 10,Malone, NY 12953
>>Scott Manning 03007-082, W-3-5841, FCI Ft. Dix Box 2000,Ft. Dix, NJ 08640
>>John March Jr. 11780-039, D-207 Room 210, P.O. Box 1000, Duluth, MN 55814
>>Stanley Marshall 07932-026UW, 9595 W. Quincy Ave.,Littleton, CO 80123
>>Christian Martensen 86002-011, 8901 S. Wilmot,Tuscon, AZ 85706
>>Franklin Martz 912163, IN D.O.C., ISP Box 41,Michigan City, IN 46360
>>Nancy Martz 85364-011 B-2, PO Box 2149,Bryan, TX 77806
>>Brian Matheney 240-295, Adams - B, PO Box 740,London, OH 43140-0740
>>E. Mark McConn 199652, HCC PO Box 129, Bldg 6B - 29,Haynesville, VA 22472
>>John McCuster 49205-080, Box 5000,Oakdale, La 71468
>>Patrick McNeill BW-2513, 1111 Altamont Blvd.,Frackville, PA 17931
>>Patricia Milicia 49213-080, C-17 U-I Box A,Alderson, WV 24910
>>Neil Miller 167590(2-B-27), ACC PO Box 538,Jefferson City, MO 65102
>>Carson Miller 19781-083 A5, PO Box 1000,Montgomery, PA 17752
>>Charles Mills 180783, C-2018-A, PO Box 488,Burkeville, VA 23922
>>Harold Mitchell 42253, Boxar County Adult Det. Ctr., 200 N. Comal,San
>>Antonio, TX 78207
>>Darlene Mitchell 07289-021, C-17 U-I Box A,Alderson, WV 24910
>>Robert Moody 184849, BCC Rte 2 Box 143,Bland, VA 24315
>>Scott Muck CF-2375, B4-6917, 10745, Rt 18,Albion, PA 16475
>>Katie Mullet 87847-011, Cherokee A, P.O. Box 7006,Marianna, Fl 32447-7006
>>Sean Mullins 218831, DMCC,State Farm, VA 23160
>>Glenn Myers 186834, PO Box 488,Burkeville, VA 23922
>>Damon Neely 94578, P.O. Box C-3D18, ASP Yuma,Yuma, AZ 85366-003
>>Michael Nelson 935832, CIC - PO Box 601,Pendleton, In 46064
>>Troy Nicholas 10166-CA, PO Box 1270,Newland, NC 28657
>>Louis Olmeda 935502-13N, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>Tim Olsen 100823, P.O. Box 3200,Goodyear, AZ 85338
>>Tom Parrish 129260, PO Box 430,Dillwyn, VA 23936
>>Dave Penick 253-244, PO Box 511,Columbus, OH 43216
>>Thomas Pitman 920940, Branchville Training Center, PO Box 500,Tell City ,
>>In 47568
>>Justin Plotts , P.O. Box 762,Somerset , Ky 42502
>>Michael Pope 07849, 150160 Lakewood Station,Atlanta, Ga 30315
>>Jeff Pope 08832-026, FCI Estill, PO Box 599,Estill , SC 29918
>>Danny Powers 197415, PO Box 670,Dillwyn, VA 23936
>>Michael Reddick 34123-060, Bhm-G.F.P.C.,Maxwell, Al 36112
>>Briton Rice , PO Box 250, 7301 Waterloo Rd.,Jessup, MD 20794
>>Anthony Richard 920146, IYCF Dorm, 727 Moon Rd.,Plainfield, In 46168-9400
>>Tim Roderman 224-527, PO Box 511,Columbus, OH 43216
>>Bret Rossiter 282-252, WCI 3/A-216, 5787 SR 63, PO Box 120,Lebanon, OH 45036
>>William Rousseau 93626, P.O. Box 5000,Florence , AZ 85232
>>Dom Serratore BZ-5603, 1111 Altamont Blvd.,Frackville, PA 17931
>>Gregory Sevits 936515, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>Chris Sia 86025-011 1/B, PO Box 5000,Sheridan, OR 97378
>>Rose Silverstein 13355-075 (C), 5701 8th St. Camp parks,Dublin, Ca 94568
>>Chuck Smith 882780, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>Bob Snodgrass 58260-065 1/B, PO Box 5000,Sheridan, OR 97378
>>Edward Snook 231521, Chippewa R. C.F., 4533 W. Tone Rd,Kincheloe, MI 49784-000
>>1
>>Jeff Snowden R151-387, CCI P.O. Box 5500,Chillicothe, OH 45601
>>Mark Staufer 99014-012, W-3-5841, FCI Ft. Dix Box 2000,Ft. Dix, NJ 08640
>>Kenny Stephens 156586, MCRCF PO Box 2000,Wartburg, TN 37887
>>Steven Stone B126675, Graham CC, Box 500,Hillsboro, Il 62049
>>Russell Stone 198603, PO Box 430,Dillwyn, VA 23936
>>Gregory Sullivan 10369-MA, GPCF PO Box 200,El Reno, OK 73036
>>Tim Susaraba 169-989, WCI, 5787 SR 63, PO Box 120,Lebanon, OH 45036
>>Troy Swann 349-94-02249, 5 Blook (5B4), 1414 Hazen St.,Elmhurst, NY 11370
>>Jim Talbo 84559-011, P.O. Box 3000 Laurel B,Manchester, Ky 40962-300
>>Ronald Tavares 16566-016, W-3-5841, FCI Ft. Dix Box 2000,Ft. Dix, NJ 08640
>>Craig Theriault 158056, PO Box 488,Burkeville, VA 23922
>>Shay Tilford 940631, IYCF Dorm, 727 Moon Rd.,Plainfield, In 46168-9400
>>Scott Titus 902427, P.O. Box 473,Westville , In 46391-0473
>>Fawn Tolley 922603, P.O. Box 473,Westville, In 46391-0473
>>Robert Traers 10566-016, PO Box 1000,Montgomery, PA 17752
>>Justin Tripp 75500, US Disciplinary Barracks Att Drawer A-Box 75500,Ft.
>>Leavenworth, KS 66027-7140
>>Ronnie Troy 23187-086, FCI Three Rivers, PO Box 4200 JWB,Three Rivers, TX 7807
>>1
>>Timothy Tyler 16125-018, FCI Marianna, PO Box 7007-Mowhawk B,Marianna, Fl
>>32447-7007
>>Tim Tyler II 16125-01B, FPC 99672-012, Mowhawk-B-122 PO Box 7007,Atlanta,
>>GA 30315
>>Robert Umstead 89B-2765, CCF Main P.O. Box 2001,Dannemoro, NY 12929-2001
>>Daniel Wasenko 28846-120, Box 5000,Oakdale, La 71468
>>Earlene Weber 92156, NH State Prison/Women, 317 Mast Rd.,Goffstown, NH 03045
>>Kelly Weeks , 1 Right Way Path,Lanconia, NH 03246
>>Stanley Wells DC 696817, 19225 US Hwy 27,Clermont, Fl 34711-9025
>>Phillip Westscott 115490, R-1-C, PO Box 11401,Yardville, NJ 08620
>>Rick Whittington 236013, PO Box 511,Columbus, OH 43216
>>Steve-O Williams 04602-052, P.O. Box 6000,Florence, Co 81266
>>James Williams 934888, 1500 W. US 40, IN State Farm,Greencastle, In 46135
>>Mark Willis 189186, Route 1, Box 8,Helena, OK 73741
>>Dennis Witt 167571, PO Box 430,Dillwyn, VA 23936
>>John Young 164410, FCC - MSU, Rt. 2, Box 2222,Mineral Point, MO 63660
>>Alan Yurko 216-942, PO Box 57,Marion, OH 43301-0057
>>--- * Help your Brothers and Sisters behind bars
>>Bill Taney * Write non-violent Prisioners of the War on Drugs
>>bta...@siu.edu * E-mail me for a list of prisoners.
>> * You can shine a ray of light in thier day!
The Front Line
>>Newsgroups: talk.politics.drugs,alt.drugs,talk.politics.misc
>>From: del...@eskimo.com (Ben Delisle)
>>Subject: ESSAY: Civil forfeiture & mandatory sentencing
>>Message-ID: <C7o6t...@eskimo.com>
>>Date: Thu, 27 May 1993 05:19:52 GMT
>>[Forwarded]
>>"Justice Goes To Pot"
>>by B. J. Oppenheimer
>>As you read this, I'll probably be behind bars, serving a possible five
>>to 40 years in federal prison with no hope of parole. My house will
>>have been confiscated by the government, and a fine of $340,000 will
>>have been levied against me.
>>I'm a nonviolent offender with no prior record. Married for 20 years
>>with two small children, I'm a college graduate and published writer.
>>I have a good reputation in the community and have been involved in
>>many charitable organizations. My only crime was planting a handful of
>>marijuana seeds....
>>When I was first arrested for growing pot last August, I freely
>>admitted my guilt, fully expecting to receive the relatively minor
>>sentence usually meted out in marijuana cases. Until recently,
>>marijuana use and cultivation was decriminalized in many places, and
>>even now it's only a misdemeanor in most states (including my own). It
>>usually warrants nothing more than a suspended sentence and a small
>>fine when prosecuted at the state level. Last year a man in Upstate
>>New York was convicted of growing 154 plants - many more than I am
>>charged with - and his only punishment was a $100 fine - less than a
>>dollar a plant.
>>My penalty probably would have been similar - if I'd been tried in
>>state court. But more and more, these cases are being turned over to
>>the federal government for prosecution, where penalties are much
>>stiffer. What would've earned me, at most, a fine and probation in
>>state court carries a mandatory minimum sentence of five years (and a
>>maximum of 40) when prosecuted at the federal level.
>>It's all because of recently enacted mandatory minimum-sentencing laws.
>> They impose statutory minimums for all drug crimes and prohibit the
>>judge from any exercise of judicial discretion in arriving at a
>>sentence. The judge is enjoined against taking into account things
>>like my reputation in the community, charitable works, or lack of prior
>>record. Since there's no such thing as parole in federal prison
>>anymore, if I'm sentenced to five years (assuming I lose my case),
>>that's how many I'll serve.
>>Chalk it up to the government's "get tough on crime" policy: So what if
>>a few undeserving people serve inflated sentences? It's worth it to
>>keep the streets free from crime. The problem is, rather on being
>>tough on crime, the net effect of mandatory minimums is to be soft on
>>crime - violent crime. Since the are no mandatory minimum sentences
>>for offenses like rape, child molestation, murder, aggravated assault,
>>et cetera, violent criminals are often released early to make room for
>>nonviolent first offenders like me. The average murderer now serves
>>only six and a half years in jail (versus the five years minimum I'll
>>serve). But if our jail terms are similar, there's one important
>>difference between the murderer and me: He
>>doesn't lose his house.
>>Even though my house was bought with legitimate earnings, and there was
>>no marijuana grown on my property, it was confiscated by the police
>>shortly after I was arrested. The primary reason given was that
>>fertilizer was found in my basement. My house was thus considered a
>>"facilitator" of the crime, which justifies its forfeiture. When I
>>learned that the government had seized my property on such flimsy
>>pretenses, it infuriated me, but what bothered me even more was that
>>they did it without even trying me first.
>>Since passage of the Comprehensive Crime Control Act of 1984, property
>>can be seized if one is merely suspected of using it in a crime. It's
>>not even necessary to be charged, much less convicted. It's up to the
>>individual to prove that he didn't use it illegally. And since this is
>>a civil forfeiture, and public defenders are only provided in criminal
>>cases, he's forced to foot the bill for a lawyer. Often he also must
>>put up a bond, sometimes as much as $10,000, which usually makes
>>fighting the forfeiture cost-prohibitive.
>>In the majority of cases, the government simply steps in and takes the
>>property without even bothering
>>to charge anyone with a crime, and there's not a thing to be done about
>>it. Since 1984 almost two and a half billion dollars in property has
>>been seized this way. There's another difference between the murderer
>>and me. He isn't subject to penalties for tax-stamp violation. Even
>>though marijuana is illegal, in many states you're required by law to
>>buy tax stamps for its cultivation - at a cost of $1,000 per plant -
>>something that's virtually impossible to do without incriminating
>>yourself. Yet even if you are somehow able to purchase the stamps
>>without getting arrested but don't actually affix the stamps to the
>>plants - in the wind and rain - you're still liable for a heavy fine.
>>And they don't just count the living, growing plants. They count the
>>dead ones and even the cutoff stems from plants that were thinned from
>>the garden and thrown away earlier.
>>Even though the total weight of marijuana in my case was under five
>>pounds, with all these other factors added in, the fine was $340,000.
>>When I asked my lawyer how the government expected me to pay such an
>>astronomical fine, he said, "They don't. They want to wipe out your
>>assets. Then when - and if - you get out of jail, they intend to
>>garnish your wages for the remainder. Of course, by that time
>>there'll be all that interest...."
>>But the fine is just part of my penalty for tax-stamp violation. It
>>also carries criminal (versus civil) penalties of up to five years in
>>state prison. That's on top of the five to 40 years I'll already be
>>serving in federal prison. All for the crime of putting a handful of
>>marijuana seeds in the ground. If this seems like a violation of the
>>Eighth Amendment ("Let the punishment fit the crime"), it's not the
>>only time the Constitution's been ignored when it comes to drug law.
>>Confiscation of property without due process is a violation of the
>>Fifth Amendment. Police can now obtain search warrants based on
>>anonymous tips, which is a violation of the Fourth Amendment. And a
>>defense attorney's legal fees can be seized in drug cases, a violation
>>of the Sixth Amendment.
>>But if drug laws are chipping away at the Constitution, they're
>>wreaking havoc on our prison system. Federal prisons are currently at
>>146 percent of capacity, and drug offenders serving mandatory minimum
>>sentences make up 57 percent of the population (more than half had no
>>prior arrests). At the current rate of incarceration, nearly 70
>>percent of all federal inmates will be drug offenders serving mandatory
>>minimums by 1995.
>>The United States now imprisons more of its citizens per capita than
>>any other country in the world (455 per 100,000 people). That's
>>compared to the No. 2 country, South Africa, with 311 per 100,000. As
>>stated earlier, violent offenders often must be granted early release
>>to make room for this influx. In a recent four-year period in Florida
>>more than 130,000 inmates (including muggers, armed robbers, et cetera)
>>were released, and one out of three went on to commit new crimes. The
>>F.B.I. reports that the rate of violent crimes in America increased by
>>24 percent from 1987 to 1991, and many people feel that mandatory
>>minimums have a lot to do with it.
>>But apart from the hypothetical increase in violent crime due to
>>mandatory minimums, there's the undeniable increase in taxpayer costs.
>>The National Institute of Corrections estimates that in 1992, the
>>United States built facilities for 2,000 cells (at a cost of $100
>>million) per week to accommodate the exploding prison population - and
>>construction costs were only a part of the total. It's been estimated
>>that in five years, the financial obligations incurred by U.S.
>>corrections could be double the current national deficit. On top of
>>that, it costs on average over $20,000 a year to house, feed, clothe,
>>and guard each of the 81,426 federal prisoners.
>>And this is to say nothing of the increased cost of social services of
>>inmates' families, which were previously being provided for by the
>>inmates themselves. Over 30 million Americans regularly smoke
>>marijuana, so it's not surprising that a lot of people in this country
>>feel that it should be decriminalized. I'm sure that many people would
>>disagree, but I doubt they'd dispute the fact that the penalties for
>>marijuana use are not only unjust and illogical, but make an
>>unconscionable waste of taxpayer dollars. With violent crime making us
>>all live like prisoners, it's time to stop freeing murders to make room
>>for marijuana users.
The Front Line
>On Fri, 26 Jun 1998 23:53:35 -0500, tu...@pluto.njcc.com (Jeremy
>Tully) wrote:
>A lot of Bull !!!
>Here Tully, Get a Clue
>or
>Try to debate this: Mr. Tully Clueless
> War Ends, Drugs Win
> Resisters say we're fighting the wrong battles.
> By Eva Bertram and Kenneth Sharpe
> The war on drugs has by all accounts failed. Yet our national
>dialogue about how to address this failure is trapped in a dead-end,
>partisan debate over who stands tougher against drug use and dealing.
>The concept of legalizing drugs has sparked some significant
>discussions and controversy -- but primarily among limited circles
>of academics and analysts. At the local level, citizens periodically
>signal an openness to rethink the war on drugs -- witness the passage
>of initiatives in California and Arizona allowing the medical use of
>marijuana -- but more consistently they demand a "get tough" approach.
> Focusing on the limits of these public debates, however, misses
>an important part of the current struggle over drug control:
>Opposition to elements of the drug war is quietly cropping up in
>courthouses, police departments, hospitals and treatment centers
>across the country. Perhaps most striking, that opposition is coming
>from those who might be expected to be the drug war's most ardent
>supporters. On its front lines, the war is sowing the seeds of its own
>opposition.
> The resistance among criminal justice officials, treatment
>providers and others involved in the drug war takes different forms.
>Some simply defect; others seek modest reforms emphasizing treatment
>rather than punishment. Still others challenge the fundamental goals
>of the drug war through harm-reduction programs. Together, they tell a
>story about the possibilities and politics of drug reform.
> Dissenters among judges, police, federal and local officials and
>military leaders are forming a growing corps of drug war defectors,
>signalling a loss of confidence in the policy at the highest levels.
>Frustrated by the impossible task of interdicting, arresting,
>prosecuting and jailing an endless stream of traffickers, dealers and
>users -- while other serious crimes go unpunished and drug abuse
>continues unabated -- many have publicly criticized the drug war, or
>even chosen to go AWOL.
> In April 1993, for example, The New York Times reported that two
>of New York City's most prominent federal judges announced "that the
>emphasis on arrests and imprisonments rather than prevention and
>treatment, has been a failure, and that they were withdrawing from the
>effort." Court officials estimate that in 1993 some fifty of the
>nation's 680 federal judges are refusing to hear drug cases.
> U.S. District Judge J. Lawrence Irving, a Reagan appointee in San
>Diego who resigned in 1990, is one of many who have objected to
>mandatory sentencing laws under which a small-time drug dealer may
>receive a harsher sentence than someone convicted of murder. "I can't
>continue to give out sentences I feel in some instances are
>unconscionable," says Irving. When "mules" -- mostly Latinos -- who
>drive a couple of kilos across the border for $500 are convicted,
>"you're talking ten, fifteen, twenty years in prison." Others, like
>U.S. District Judge Robert Sweet, argue for an end to prohibition and
>a focus on "those conditions which result in drug use.... If we are
>not willing to become our brothers' keepers, then we will have to
>become our brothers' jailers."
> Former San Jose, California, police chief Joseph McNamara
>compares waging war on the drug supply to "throwing sand against the
>tide." A growing number of his peers agree. Some 60 percent of police
>chiefs polled in a March 1996 nationwide survey believe that current
>antidrug efforts have been ineffective. Said retired chief detective
>Ralph Salerno after forty-two years in law enforcement, "police
>officers and all other Americans... are being lied to" by political
>leaders. "As someone who has been on the front lines of the war on
>drugs, I know it will never work."
> Even top federal law officials have challenged the drug war
>strategy. In December 1993 Surgeon General Joycelyn Elders said it was
>possible that "we would markedly reduce our crime rate if drugs were
>legalized" and called for further study; that position, among others,
>cost Elders her job. Former Secretary of Defense Caspar Weinberger
>challenged the drug war's military mission, calling it no more than "a
>vague injunction to 'stop the drug traffickers,'" and former Secretary
>of State George Shultz has pointed to the ways the drug war generates
> criminal activity without reducing supply: "We're not really going to
>get anywhere until we take the criminality out of the drug business
>and the incentives for criminality out of it."
> The public criticism of drug war defectors has legitimized a
>wider debate. Others in the treatment community and criminal justice
>system have chosen to challenge failed policies not by defecting from
>the drug war but by reforming it to shift the emphasis from punishment
>to treatment. The failure to lower drug abuse has convinced many
>treatment providers that the law-enforcement emphasis of current
>policy is misguided: Some 70 percent of federal drug war funds are
>invested in enforcement, and only 30 percent in treatment and
>prevention. Providers are fighting to make treatment a full and equal
>partner with law enforcement in the war on drugs. They want access to
>treatment for all who seek it, and urge greater attention to the needs
>of particular groups such as pregnant addicts and H.I.V.-infected drug
>users.
> They face an uphill battle. The stigma against drug users is
>deeply rooted, and there is widespread sentiment against using
>government funds to treat rather than punish those who have chosen to
>use illegal drugs. In response, many treatment providers make the
>strategic choice not to challenge the role of law enforcement. "If we
>had a new policy in place, we would not need to be arresting many of
>these people," explained one national treatment association director.
>"But if you say this...you will have every enforcement group in the
>country all over you.... You cannot win any kind of national campaign
>for treatment and prevention if you say federal dollars are wasted on
>law enforcement."
> Many treatment advocates go further, turning the
>get-tough-on-drugs logic to their advantage by marshaling evidence
>that treatment is more effective than prison in preventing crime and
>reducing recidivism. "Riding the crime wave," notes one treatment
>professional, enables providers to "get the money we need."
> Health care providers have found unlikely allies in the criminal
>justice system. Frustration with the drug war's revolving door has
>led many law-and-order advocates to conclude that substance-abusing
>offenders will cycle endlessly through the system -- unless they
>receive treatment and health care. Reformers have organized not only
>for treatment in prison but also for treatment as an alternative to
>prison. In court-ordered "diversion to treatment" programs, drug
>offenders who commit nonviolent crimes are given the option of
>court-monitored treatment programs rather than prison. They are
>threatened with doing time, however, if they don't successfully
>complete these programs.
> Not surprisingly, drug courts, as they are known, have drawn fire
>from antidrug warriors who object that users are lawbreakers, and the
>job of law enforcement is to punish -- not coddle -- them. "These are
>not the innocent drug addicts they are made to seem," said a spokesman
>for New York State's former Senate majority leader, Ralph Marino. "If
>you're going to sink new spending into this area, we ought to deal
>with additional prison bed space." Because drug courts look
>"revolutionary," said Miami judge Herbert Klein, "it takes real clout
>to overcome ingrained bureaucratic resistance." In Miami, where the
>first drug court was opened in 1989, it required forming a broad
>coalition including health and law-enforcement officials, local
>colleges, media, business, labor, religious and other community
>groups.
> Despite significant gains in building political support,
>reformers in both the treatment and criminal justice communities point
>to a troubling paradox in their efforts. In practice, the goals of
>promoting health and punishing illegal behavior often come into
>conflict. Some reform advocates argue that selling treatment as a
>crime-fighting tool may win votes and funding for treatment -- but it
>also reinforces the assumption that drug users are criminals. In the
>long run, this undermines public support for treatment. "Once we make
>drug addicts into the enemy," explained one treatment director,
>"society has a rough time taking them back in. Why would the public
>want to pay for more treatment if they're dealing with the enemy?"
> Criminal justice reformers point to similar contradictions. If
>"treatment is done by the keeper of the keys" rather than by
>independent counselors, explained one professional, "you destroy the
>trust and openness necessary for counseling to work." From a treatment
>perspective, for example, a "three strikes, you're out" rule is
>unrealistic because it fails to recognize the prospect of frequent
>relapse on the road to recovery. Some critics point to a more
>fundamental contradiction: Drug courts may help sustain a drug war
>that criminalizes those with substance abuse problems.
> The strategy of treatment and criminal justice reformers is to
>publicly challenge the means (punishment) but not the end (no drug
>use) of the drug war. Harm-reduction advocates, in contrast, have
>chosen to take on the zero-tolerance goal of drug control itself. The
>objective of drug policy, they argue, should be to reduce the harmful
>consequences of drug use to the individual, his or her loved ones and
>the community as a whole.
> The most vocal advocates of harm reduction are the public health
>and community activists who have had to challenge drug war policies in
>their battle against the spread of AIDS. More than one-third of all
>current AIDS cases are associated with injecting drugs. Passed on
>through the sharing of contaminated needles, the AIDS virus is
>contracted each year by 10,000 drug users, their sex partners and
>their children -- the equivalent of one to two preventable H.I.V.
>infections per hour, including the majority of AIDS cases in children
>under 13.
> For more than a decade, AIDS prevention activists have mobilized
>to discourage the practice of sharing contaminated needles through
>needle-exchange programs (NEPs), which provide sterile needles to
>addicts and encourage them to seek treatment. Mounting evidence
>demonstrates that NEPs can significantly slow the spread of AIDS and
>do not encourage increased drug use. But advocates are stymied by drug
>war policies banning the sale or possession of needles, and by volley
>of rhetorical attacks and new laws prohibiting such programs.
>Concluding that we cannot "allow our concern for AIDS to undermine our
>determination to win the war on drugs," the Bush Administration said
>"there is no getting around the fact that distributing needles
>facilitates drug use and undercuts the credibility of society's
>message that using drugs is illegal and morally wrong." Clinton drug
>czar Gen. Barry McCaffrey concurs: "The problem isn't dirty needles;
>it's injection of illegal drugs."
> Arguing that saving lives and promoting health are more important
>goals than signaling society's condemnation of drug use, and that
>public policy should seek to reduce those harms, advocates are
>fighting to implement NEPs. In cities such as New Brunswick, New
>Jersey, and Nashua and Manchester, New Hampshire, advocates have been
>arrested for violating state anti-needle laws. In dozens of other
>cities, community groups have successfully launched programs, often
>through the creation of broad local coalitions: In New Haven, for
>example, community activists and service providers joined the
>Y.M.C.A., experts from Yale, local health department officials, the
>mayor and the police chief to overcome opposition in the Connecticut
>General Assembly. In Santa Clara, California, county supervisors
>backed local efforts by issuing a "declaration of emergency" to make
>an exception to the state's anti-needle laws. When State Attorney
>General Dan Lungren threatened a lawsuit to block the program, county
>funds were withdrawn -- and volunteers from the North American Syringe
>Exchange Network in Tacoma, Washington, helped keep the program alive.
> The battle over needle exchange may be the most visible, but it
>is not the only effort under way to redirect drug policy toward harm
>reduction. From New York to California, methadone advocates are
>organizing to expand treatment for heroin addicts. Arguably the first
>harm-reduction tool adopted in the United States, methadone satisfies
>an addict's cravings without heroin's euphoric effects, enabling users
>to function and sometimes to overcome their addictions. Locally,
>groups like the Oregon-based Mothers Against Misuse and Abuse are
>challenging zero-tolerance strategies for drug education. The group
>wants to teach children "good communication, decisionmaking and life
>management skills" as well as "basic drug consumer safety." Almost a
>thousand community activists, local officials and service providers
>attended the first national conference of the Harm Reduction Coalition
>in Oakland this past September.
> Transforming an ambitious agenda and dispersed local efforts into
>an effective campaign for reform means a difficult and protracted
>struggle, however.The principle of harm reduction strikes at the core
>of the current approach to drug control. Conventional wisdom assumes
>that drug abuse and addiction are crime problems; in contrast, many
>harm-reduction advocates see them as public health problems, like
>heavy drinking or AIDS. Conventional wisdom assumes that drug
>use and abuse result from bad individual judgment or character;
>harm-reduction advocates emphasize the ways the social environment
>shapes these choices. The drug war solution to drug abuse and
>addiction is to threaten and punish those who use or deal drugs.
>Harm-reduction strategies, in contrast, would shift resources toward
>prevention and treatment, and would redefine and expand the scope of
>both.
> Preventive education for harm reduction would seek to inform and
>influence individual choices, not only to discourage any use of
>dangerous drugs but also to educate those who will nevertheless
>experiment with and use drugs, teaching them how to minimize the harm
>they cause themselves and others -- just as designated driver programs
>help reduce the harm of drinking. Prevention would also demand
>policies aimed at changing social environments that encourage abuse
>and addiction, including abusive family settings, peer pressures and
>joblessness. Treatment for harm reduction would make total abstinence
>only one goal along a continuum of care that would include many
>measures of success: more moderate use, safer use, the use of less
>dangerous drugs, reduction of criminal activity, ability to fulfill
>family and workplace roles, greater physical and mental health.
> Not surprisingly, strategies to reduce the harm drug users cause
>themselves or others -- without insisting on total abstinence or harsh
>punishment -- draw fire from across the political spectrum, from
>parents' groups and church organizations to health officials and
>policymakers. Such opposition makes the prospects for building a
>broad-based harm-reduction movement daunting.
> It is not clear whether or how the opposition of drug war
>defectors, treatment reformers and harm-reduction advocates will
>translate into a politics of reform. These front-liners may share a
>critique of the failures and contradictions of the drug war, but they
>do not share an agenda for change, and alliances between them are few
>and fragile. But the terms of debate and the configuration of the
>coalitions arrayed for and against reform will be shaped in
>significant ways by these front-line struggles.
> Eva Bertram is a policy analyst in Washington, D.C. Kenneth
>Sharpe chairs the political science department at Swarthmore College.
>They are co-authors (with Morris Blachman and Peter Andreas) of Drug
>War Politics: The Price of Denial (California). Research sponsored by
>the Abe & Flora Shafer Fund of The Nation Institute.
> Copyright (c) 1996, The Nation Company, L.P. All rights reserved.
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