Forfeitures and Informers

FEDERAL prosecutors now have an extraordinary amount of power in drug cases. A U.S. attorney can determine the eventual punishment for a drug offense by deciding what quantity of drugs to list in the indictment, whether a mandatory -minimum sentence should apply, and whether to press charges at all. Drug offenses differ from most crimes in being subject to federal, state, and local laws. The federal government could prosecute any and every marijuana offender in the United States if it so desired, but in a typical year it charges fewer than one percent of those arrested. By choosing to enter a particular case, a federal prosecutor can greatly affect the penalty for a marijuana crime. In 1985 Donald Clark, a Florida watermelon farmer, was arrested for growing marijuana, convicted under state law, and sentenced to probation. Five years later the local U.S. attorney decided to prosecute Donald Clark under federal law for exactly the same crime. Clark was found guilty and sentenced to life in prison without parole. A Justice Department spokesman quoted in Smoke and Mirrors later defended the policy of trying drug offenders twice for the same crime: "The intent is to get the bad guys off the street
with apologies to none."

Under civil forfeiture statutes passed by Congress in the 1980s, the federal government now has the right to seize real estate, vehicles, cash, securities, jewelry, and any other property connected to a marijuana offense. The government need not prove that the property was bought with the proceeds of illegal drug sales, only that it was used - or was intended to be used - in a crime. A yacht can be seized if a single joint is discovered on it. A farm can be seized if a single marijuana plant is found growing there. According to Steven B. Duke, a professor at Yale Law School, in some cases a house can be seized if it contains books on marijuana cultivation. The U.S. Supreme Court ruled last year that the government can seize property even when its owner had no involvement in, or knowledge of, the crime that was committed. When property is seized, its legal title passes instantly to the government. The burden of proving its "innocence" falls upon the original owner. In 1994 assets worth roughly $1.5 billion were forfeited under state and federal laws. In perhaps 80 percent of those cases the owner was never charged with a crime. The forfeiture statutes have deepened the injustice of the war on drugs by enabling wealthy defendants to surrender property in return for shorter sentences; plea-bargain negotiations often turn into haggling sessions worthy of a Middle Eastern souk.

The proceeds from an asset forfeiture are divided among the
law-enforcement agencies involved in the case, a policy that invites
the abuse of power. Former Justice Department officials have admitted
in newspaper interviews that many forfeitures are driven by the need
to meet budget projections. The guilt or innocence of a defendant has
at times been less important than the availability of his or her
assets. In California thirty-one state and federal drug agents raided
Donald P. Scott's 200-acre Malibu ranch on the pretext that marijuana
was growing there. Scott was inadvertently killed during the raid. No
evidence of marijuana cultivation was discovered, and a subsequent
investigation by the Ventura County District Attorney's Office found
that the drug agents had been motivated partly by a desire to seize
the $5 million ranch. They had obtained an appraisal of the property
weeks before the raid. In New Jersey, Nicholas L. Bissell Jr., a local
prosecutor known as the Forfeiture King, helped an associate to buy
land seized in a marijuana case for a small fraction of its market
value. In Connecticut, Leslie C. Ohta, a federal prosecutor known as
the Queen of Forfeitures, seized the house of Paul and Ruth Derbacher
when their twenty-two-year-old grandson was arrested for keeping
marijuana there. Although the Derbachers were in their eighties, had
owned the house for almost forty years, and had no idea that their
grandson kept pot in his room, Ohta insisted upon forfeiture of the
house. People should know, she argued, what goes on in their own home.
Not long after, Ohta's eighteen-year-old son was arrested for selling
LSD from her Chevrolet Blazer. Allegedly, he had also sold marijuana
from her house in Glastonbury. Ohta was quickly transferred out of the
U.S. attorney's forfeiture unit - but neither her car nor her house
was seized by the government.

The only way a defendant can be sure of avoiding a mandatory-minimum sentence under federal law is to plead guilty and give "substantial assistance" in the prosecution of someone else. The willingness to turn informer has become more important to a drug offender's fate than his or her role in a crime. The U.S. attorney, not the judge, decides whether the defendant's cooperation is sufficient to warrant a reduction of the sentence. Although this system helps to avoid expensive trials and provides evidence for future indictments, it also leads to longer prison terms for the minor participants in a drug case. Kingpins have a great deal of information to provide, whereas drug couriers often have none.

A little-known provision of the forfeiture laws rewards confidential
informers with up to 25 percent of the assets seized as a result of
their testimony. During the 1980s the United States developed a
wealthy and industrious class of professional informers. In 1985 the
federal government spent $25 million on informers. Last year it spent
more than $100 million.

Informing on others has become not just a way to avoid punishment but a way of life. In major drug cases an informer can earn a million dollars or more. A recent investigation by the National Law Journal found that the proportion of federal search warrants relying exclusively on unidentified informers nearly tripled from 1980 to 1993, increasing from 24 percent to 71 percent. The growing reliance on informers has given an unprecedented degree of influence to criminals who have a direct financial interest in gaining convictions. Informers have been caught framing innocent people. Law-enforcement agents have been caught using nonexistent informers to justify search warrants.

"Criminals are likely to say and do almost anything to get what they want," Stephen S. Trott, a federal judge who was the chief of the Justice Department's Criminal Division during the Reagan years, says in the National Law Journal. "This willingness to do anything includes not only truthfully spilling the beans on friends and relatives but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including - and especially - the prosecutor."

The legal and monetary rewards for informing on others have even
spawned a whole new business: the buying and selling of drug leads.
Defendants who hope to avoid a lengthy mandatory-minimum sentence but
who have no valuable information to give prosecutors can now secretly
buy information from vendors on the black market. According to Tom
Dawson, a prominent Kansas defense attorney, some professional
informers now offer their services to defendants in drug cases for
fees of up to $250,000.

Most of the people being imprisoned for marijuana offenses are ordinary Americans without important information to provide, large assets to trade, or the income to pay for high-priced attorneys.
Allen St. Pierre, the deputy director of the National Organization for the Reform of Marijuana Laws, has spoken to literally thousands of people who have been arrested for pot-related offenses. He receives about a hundred phone calls each week from people who are losing their jobs, losing their houses, feeling desperate for advice. They tend to be working people: house painters, clerks, carpenters, and mechanics. Their cases tend to be handled, or mishandled, by family attorneys with little knowledge of the marijuana laws. America's prisons are full of poor and working-class marijuana offenders.

Children of the upper middle class are rarely sent to prison for marijuana offenses today. Their parents usually enroll them in private drug-treatment programs before trial and hire attorneys who specialize in drug cases. Privileged young men and women are usually treated more leniently in court. The daughter of Judge Rudolph Slate, the man who sentenced Douglas Lamar Gray to life for buying a pound of marijuana, was later arrested for selling the drug. She was granted youthful-offender status. The records in her case have been sealed; most likely she received probation.
The son of Indiana Congressman Dan Burton, an outspoken proponent of life sentences for some marijuana-related crimes, was arrested for transporting nearly eight pounds of pot from Louisiana to Indiana in the trunk of his car. Six months later Danny L. Burton II was arrested again, this time at his Indianapolis apartment, where police found thirty marijuana plants and a shotgun with six shells. Federal prosecutors declined to press charges against Burton's son; Indiana prosecutors gained dismissal of the charges against him; and a Louisiana judge sentenced him to community service, probation, and house arrest. As chairman of the House Government Reform and Oversight Committee, Burton is now leading the investigation of ethical lapses in the Clinton Administration. He will not comment on his son's case.

The harshest punishments are given to people who won't cooperate with the government. The pressure to inform on others is immense - as is the cost of resisting it. In 1993 Jodie Israel was arrested for marijuana possession and balked at testifying against her husband, a Rastafarian marijuana trafficker. Federal prosecutors in Montana threatened her with a long prison sentence. Although Israel possessed only eight ounces of marijuana at the time of her arrest, under the broad federal conspiracy laws she could be held liable for many of her husband's crimes. Israel was thirty-one years old, the mother of four young children. She had never before been charged with any crime. Judge Jack Shanstrom warned her in court that without a promise of cooperation "you are not going to see your children for ten plus years." Nevertheless, Israel refused to testify against her husband She was sentenced to eleven years in federal prison without parole. Her husband was sentenced to twenty-nine years without parole. Her children were scattered among various relatives.

"A Matter of Practicality"

IN 1988 State Senator Stewart J. Greenleaf wrote the bill that made
tough mandatory-minimum drug sentences part of Pennsylvania law.
Greenleaf, a Republican from rural Montgomery County, is now the
chairman of the Senate Judiciary Committee in Pennsylvania - and an
outspoken critic of mandatory-minimum sentences. "These laws just
haven't worked as we planned," he now admits. Politicians are refusing
to acknowledge the true cost of the nation's drug laws. "We're not
being honest," Greenleaf says, "to the public or to ourselves."

In adopting mandatory-minimum sentences, Pennsylvania had simply
followed the federal government's lead, aiming to give long prison
terms to major drug dealers. Instead the state's prisons have been
flooded with low-level drug offenders who cannot be paroled. Over the
past decade the state's prison population has doubled. Its prison
system is now operating at 54 percent above capacity. In order to keep
pace with the current rate of incarceration, Pennsylvania will have to
open a new prison every ninety days. Each new prison cell costs about
$110,000 to build and about $25,000 a year to maintain. At the moment
nearly 70 percent of the inmates in Pennsylvania's prisons are
nonviolent offenders. Convicted murderers granted early release have
gone on a number of well-publicized killing sprees. "Expensive prison
space must be held for those who are truly violent or career
criminals," Greenleaf has come to believe. "This problem has
transcended party lines and social ideologies; it is a matter of
practicality and fiscal responsibility."

As prisons become more and more overcrowded, state legislators across
the country are exploring a wide range of alternative sentences. At
least half a dozen states now allow low-level drug offenders to avoid
prison terms by entering drug-treatment programs. In Pennsylvania,
where perhaps 80 percent of all crimes are being committed by either
alcohol or drug abusers, the state District Attorneys Association and
the local chapter of the American Civil Liberties Union both advocate
emphasizing substance-abuse treatment rather than imprisonment.
Greenleaf favors treatment programs, intensive probation, and
ninety-day "shock incarceration" in jail or boot camps for most drug
offenders - alternatives that are far less expensive than sending
people to prison. Although he worries about the political fallout from
his stance, he will not budge. "We have to be smart about whom we
incarcerate," Greenleaf says, "and not waste taxpayers' money."

The trend toward alternative sentences for drug offenders has lately gained support in some unexpected quarters. Arizona's recently passed Proposition 200 not only allows the medicinal use of marijuana but also has reformed the state's approach to drug control. Since the early 1980s Arizona had aggressively pursued a drug strategy of "zero tolerance," administering harsh punishments for illegal drug use, not just for drug trafficking and possession. Failing a urine test was grounds for prosecution in Arizona: a person could face criminal charges in Phoenix for a joint smoked in Philadelphia days or even weeks before. Arizona's prisons grew overcrowded, and tent cities rose in the desert to house inmates. Proposition 200 declared that "drug abuse is a public health problem" and vowed to "medicalize" the state's drug-control policy. In order to free up prison cells for violent offenders, the initiative called for the immediate release of all nonviolent prisoners who had been convicted of drug possession or use. It called for drug treatment, drug education, and community service instead of prison terms for nonviolent minor drug offenders. And it called for the creation of a state Drug Treatment and Education Fund through an increased tax on alcohol and tobacco. Proposition 200 was endorsed by aging hippies, former members of the Reagan Administration, the retired Democratic senator Dennis DeConcini, and the retired Republican senator Barry Goldwater, among others. On Election Day, Arizona voters backed the initiative by a margin of two to one. But the Clinton Administration attacked Proposition 200 as though it were a dangerous heresy, threatening to block its implementation and to prosecute any physicians who recommend marijuana to their patients. Clinton's drug czar, Barry McCaffrey, called the Arizona initiative a subterfuge, part of "a national strategy to legalize drugs."

While the Administration escalates the war on marijuana, law-enforcement officers on the front lines are beginning to question some of its tactics. Steve White served with the Drug Enforcement Administration and its predecessor, the Bureau of Narcotics and Dangerous Drugs, for twenty-eight years before his retirement, last year. Twenty-three of those years were spent working undercover in Indiana, mainly tracking down marijuana growers. Under White's leadership the Cannabis Eradication Program arrested more pot growers every year in Indiana than were arrested in just about any other state. White strongly condemns marijuana use and gives anti-drug lectures at high schools. But he opposes the long prison terms that first-time marijuana growers now receive. "I'm a big advocate of alternative sentencing," he says. "For most pot growers, prison isn't the answer. These aren't violent people. They usually have jobs, and homes, and children. Why make their families a burden to the community?" White has learned over the years that marijuana growers come from all sorts of backgrounds and possess a variety of skills. "Put them to work, make them do community service," he suggests. "Prison terms only strengthen their anti-establishment views." Most commercial marijuana growers will quit the business after being caught once or twice. White feels little sympathy, however, for the unrepentant growers who are motivated by big money and the thrill of breaking the law. After a third conviction for large-scale marijuana cultivation, he thinks, alternative sentences should no longer apply. "Make prison a real pleasant place," White says, "and keep those guys in there forever."

The long prison sentences now given to marijuana offenders have turned marijuana - a hardy weed that grows wild in all fifty states - into a precious commodity. Some marijuana is currently worth more per ounce than gold. A decade ago the policy analysts Peter Reuter and Mark A. R. Kleiman observed that the price of an illegal drug is determined not only by its supply, demand, and production costs but also by the legal risks of selling it. As the risks increase, so does the profit.
This theory has been supported by the huge rise in marijuana prices since the latest war on drugs began. In 1982 the street price for an ounce (adjusted for inflation) was about $75. By 1992 it had reached about $325. Although the costs of cultivating marijuana rose somewhat during that period, most of the 333 percent price increase represented sheer profit - the reward for evading punishment. The legal risks of cultivation have encouraged growers to produce much more potent strains of the drug, which bring a higher price and require a lower volume of sales. Growers have also found another means of reducing their risk: bribery. Throughout the nation's rural heartland local sheriffs are being paid to look the other way during the marijuana harvest. Even local prosecutors and judges are being corrupted by drug money. The large profit margins transformed U.S. marijuana cultivation in the 1980s from a fringe economic activity into a multibillion-dollar industry - despite the fact that marijuana use was falling at the time. In Indiana the value of the annual marijuana crop now rivals that of corn. In Alabama it rivals that of cotton. The threat of long prison sentences has succeeded in making some marijuana growers rich, but it has hardly affected the availability of pot. In 1982, when President Reagan declared his war on drugs, 88.5 percent of America's high school seniors said that it was "fairly easy" or "very easy" for them to obtain marijuana. In 1994 the proportion of seniors who said they could easily obtain it was 85.5 percent.