I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, April 07, 2006

Using the Drug "War" to Expand Government Power

GUEST POST - By Pete Guither and Hypatia

"[The Patriot Act] allowed the Department of Justice to use the same tools from the criminal process on terrorists that we use to combat mobsters or drug dealers."
- John Ashcroft

"The law allows our intelligence and law enforcement officials to continue to share information. It allows them to continue to use tools against terrorists that they used against -- that they use against drug dealers and other criminals. ... And the bill gives law enforcement new tools to combat threats to our citizens from international terrorists to local drug dealers."
- George W. Bush, March 9, 2006

Whether it's terrorism or drugs, declaring war is an opportunity for the state to demand more tools, more weapons, more power. All the Department of Justice needs to do is utter the words "terror" or "drugs," and Congress starts writing blank checks. These days they utter both, and the sky's the legislative limit.

We discussed what is arguably the most vicious drug war weapon – prison – at this site in our guest post Prison & the War on Drugs: Just Say No. But the drug warriors have long employed many other dangerous and/or inhuman additional weapons, and these are now growing more numerous. Most recently that is thanks to The Patriot Act (“TPA”), sold as an essential tool in fighting terrorists, but one that it also being used with increasing frequency in many criminal investigations that have little or no connection to terrorism, especially the investigation of suspected drug traffickers. (And, as will be seen, no one understands and objects to this state of affairs more strongly than Senator Russ Feingold.)

About 110 million Americans age 12 or older (46% of the population) have reported using illegal drugs at some time in their lives. Further, many if not most users also qualify as “dealers” in the eyes of the law. With close to half of our country constituting "the enemy,” the government must have a heavy and varied armory, if it is to effectively wage battles on this massive domestic horde of drug belligerents. Let us consider what, then, in addition to prison, comprises the drug warriors' arsenal that it trains on nearly half of us.

Drug War Weapon: Asset Forfeiture

Forfeiture -- the seizure of the personal property of traitors or certain felons -- has its roots in English common law and was used to a limited degree in the American colonies. Our Founders, however, despised it, and in 1790 the very first Congress abolished forfeiture. That repeal held for 180 years, until 1970 and Richard Nixon's drug war push.

The new federal asset forfeiture law is civil, not criminal, and unlike the English common law, which required conviction prior to seizure, American forfeiture dispenses with the need for proving the property owner guilty of anything. All that is necessary is for the state to claim a connection between the thing seized and drugs, whereupon the government may confiscate the property. It is then up to the owner to prove (at their own expense, hiring a lawyer & etc.) that the property is "innocent." Critically, the proceeds from the seizures go into the budget of the state or federal law enforcement agencies and prosecutors offices, creating a horrible incentive for officers to go after seizures solely for the purpose of enriching their units with a swell new fleet of fully loaded police cruisers, or lovely new desks for the DAs.

Forfeiture Endangers American Rights documents some of the myriad, rampant abuses of civil asset forfeiture:

  • Willie Jones, the black owner of a Nashville nursery business. Jones aroused the suspicions of a ticketing agent by purchasing an airline ticket with cash. He was traveling to Houston to buy nursery inventory with cash. Jones was not arrested or charged with a crime, but the $9,600 so essential to his family business was seized. Law enforcement assumes that sanyone carrying that much cash, especially to a city where drug trafficking occurs, must be a drug dealer. While there was no evidence to charge Jones, lack of evidence wasn't necessary to charge his cash (the concept, again being, that since objects aren't people, they aren't entitled to the presumption of innocence.)
  • Donald P. Scott was a reclusive millionaire in California with a 200 acre ranch in Malibu. His home was raided by 30 law enforcement officers hoping to find marijuana plants, with a plan to seize the property. In the course of the raid, Scott was shot to death by two sheriffs deputies. No drugs were found. According to District Attorney Michael Bradbury:"It is the District Attorney's opinion that the Los Angeles County Sheriffs Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government... Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott's death warrant."

  • Last fall, 56-year-old Cynthia Warren of Boulder City, Colorado pled guilty to a misdemeanor charge of growing 6 marijuana plants in her home and was fined $500. But that wasn't the end of it. City Attorney Dave Olsen attempted to seize her $400,000 home.

And yes, this is all constitutional; thus has held our Supreme Court. The state may seize your “guilty property” even if you are an “innocent owner,” unaware of or uninvolved in any illicit activity. Further, asset forfeiture having been brought back to us for the drug war, it may now apply to other vice crimes, according to our Highest Court; even if you are an innocent wife who co-owns a vehicle with your husband, and in that car the cad avails himself of the services of an, um, “sex worker.” You lose your "guilty" vehicle to the state.

The Civil Asset Forfeiture Reform Act of 2000 (pdf) made some minor corrections to the federal law, but the program is still a major law enforcement agency budget enhancer, and is rife with corruption. Abuse of state asset forfeiture laws is rampant. Since 1997, less than half of the law enforcement agencies in Ohio have filed reports listing money and property seized, despite a state law that mandates reporting. Utah tried to reform the laws by requiring seized assets to go to education rather than law enforcement, but were stymied by their own law enforcement agencies who refused to comply as well as the federal government. Getting around state law often merely requires involving a federal agent in the bust. That renders it a federal case, and the feds automatically kick back a percentage to local law enforcement. Federal seized assets totalled $500 million in 2005 -- not a bad little petty cash fund.

Drug War Weapon: Criminal and Paid Informants

The informant is an essential tool in the war on drugs, most commonly sent out to buy drugs and then law enforcement arrests the sellers. Informants did not used to be heavily employed by the police, but they are “necessary” in vice crimes, and especially so in the drug war. That is because unlike in the instance of, say, rape or robbery, there is no complaining witness; drug transactions do not normally involve an aggrieved party -- "Officer, that man sold me some weed, help me!" And since drug dealers are also generally unwilling to conveniently conduct transactions in front of law enforcement officers, the drug warriors simply “must” make extensive use of informants. These are either paid (sometimes by the bust or according to the amount of drugs involved), or s/he is working for a reduced sentence. Either way, the incentive is to deliver the arrest and conviction of other citizens, any way they can.

The results are predictable:

  • In 1999, a drug sting operation in the small town of Tulia, Texas resulted in the arrest of 46 people, 40 of whom were black. The remaining six individuals were either Latinos or whites dating blacks. This drug bust resulted in the incarceration of almost 15% of the black population of Tulia. All were charged based on the word of Tom Coleman, a paid operative who worked alone, did not wear a wire, and did not record the locations of any of the supposed drug transactions. Despite a paucity of evidence other than Coleman's claims, several of the accused were convicted (including one who received a 99 year sentence). But then things began to fall apart. Some of the suspects had proof they were elsewhere at the time of the supposed drug buys. Information surfaced that Coleman had a criminal past and a history of lying. Eventually the case got some visibility and public pressure. A special prosecutor dropped the charges for those being held, and the Governor signed a bill in 2003 freeing those who had already been sent to prison.
  • In 2001, narcotics informants on the Dallas police payroll planted packages of billiards chalk on dozens off innocent Mexican immigrants, who were then arrested and imprisoned for cocaine trafficking. The bigger the "buy," the more the police would pay their informants. This travesty came to light when several Dallas police officers were prosecuted for corruption.

Drug War Weapon: No-knock Searches

The most dangerous tool used in the War on Drugs is the no-knock drug raid. It's 4 a.m. and dozens of officers dressed in black prepare to storm a house. They come with battering rams to smash down the door, flash grenades are employed, and before the residents can fully wake up and figure out what's going on, armed men are swarming through the house and into the bedrooms. Anything can happen. And it does.

Federal constitutional law generally requires "knock and announce" before entering a residence with a search warrant. However, there is an "exigent circumstances exception" -- generally held to include situations threatening physical safety, or the imminent destruction of evidence. And we cannot have drug dealers flushing evidence down the toilet, so officers crash into homes without first knocking and announcing themselves.

Prior to the drug war, no-knock searches and SWAT teams were generally reserved for hostage situations and extremely rare cases where lives were in danger. And for good reason -- storming into a house is incredibly dangerous for both officers and residents. These are military tactics and should only be used on civilians as a last resort. But, of course, this is a “war,” hence the commando raids. (See this excellent post at QandO about a case currently being reviewed in the Supreme Court pertaining to the constitutionality of no-knock searches.)

Indeed, with the advent of the war on plants, pills and powders, there has been an explosion in SWAT teams and no- knock drug raids around the country (why does Mount Orab, Ohio -- population 2,701 -- need its own 12-man SWAT team?). In the 1980s, there were about 3,000 annual SWAT team deployments each. Today, courtesy of the drug war, there are at least 40,000 a year.

These raids entail high risk of two serious dangers: officers understandably on edge ready to fire at the slightest provocation, and confused residents who may think their home is being invaded (some of whom may be legally or illegally armed). With the increase in the use of these tactics, therefore, comes an increase in the frequency of these kinds of stories:

  • 8-year-old Xavier Bennett was accidentally shot to death by officers in a pre-dawn drug raid during a gunfight with one of Xavier's relatives.

  • 11-year-old Alberto Sepulveda was killed by a shotgun blast to the back while following police orders and lying face down on the floor during a SWAT raid.

  • 84-year-old, bed-ridden Annie Rae Dixon was in her room at the time of a drug raid. An officer kicked open her bedroom door and accidentally shot and killed her.
  • 56 year-old Alberta Spruill died of a heart attack during a wrong- address drug raid. The same thing happened to the elderely, Reverend Accelyne Williams in a separate wrong-address raid.

  • 23-year-old Anthon Diotaiuto was working two jobs to pay for the house he lived in with his mother. He died after he was shot 10 times during a raid on his house that yielded 2 ounces of marijuana.

  • 46-year-old Willie Heard thought his home was being invaded and he grabbed his unloaded rifle to protect his wife and daughter. He was shot to death in front of them. The police had gone to the wrong address.
  • During a drug raid, smoke grenades started the house on fire. 21- year-old John Hirko was shot to death in the back trying to escape the burning building. (The city of Bethlehem, PA is paying an $8 million settlement to his family.)

  • 20 year-old Jose Colon made the mistake of visiting a house targeted for a raid. He was standing outside when SWAT shot him in the head.
  • 45 year-old Ismael Mena was killed in his home by police. They were at the wrong address.

  • 65 year-old Mario Paz died when he was shot twice in the back in his bedroom during a drug raid.

Well, but we are war. During war, collateral damage and friendly fire are to be expected in harsh battle zones. But is this the America we want? A country where we engage in military-style invasions of citizens’ homes to prevent dried weeds and powders from being flushed?

Do we want more drug war weaponry, and escalation of the tactical offensives, sanctioned in the name of the war on terror via TPA? No, thinks the estimable Russ Feingold, who has been much maligned for his vote against it, but who approves of most of TPA. Among his objections, however, is opposition to enhancing the use of an un-American weapon in the drug warriors' armory, namely expanded use of “sneak and peek” searches (our emphasis):

Notice of [a] search is part of the standard Fourth Amendment protection. It’s what gives meaning, or maybe we should say “teeth,” to the Constitution’s requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized. Over the years, the courts have had to deal with government claims that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by leading to the flight of the suspect or the destruction of evidence. The two leading cases on so-called surreptitious entry, or what have come to be known as “sneak and peek” searches, came to very similar conclusions….

Let me make one final point about sneak and peek warrants. Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren’t needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don’t want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring.

The drug war and its odious arsenal are a danger to our society. They result in lost lives, police corruption, and a severe erosions of citizens' rights -- and familes destroyed by loved ones going to prison. Even if the drug war were considered a success (a truly absurd belief), it is surpassingly clear that the tools of prohibition are worse than the drugs prohibited. The Bush Administration’s expansion of the types and occasions for use of these weapons, while invoking and piggy-backing on terrorism as an excuse, is wholly unjustified; it is right for Feingold, and all of us, to just say no.

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