How Did We Get Here?

Today, Mike Konczal of the Roosevelt Institute takes exception to my response (and that of Vice writer Lucy Steigerwald) to Franklin Foer's piece about runaway local law enforcement and the abuse of civil asset forfeiture.

As I explained to Konczal in a longish Twitter exchange last week, I'm not arguing with Foer's point that local law enforcement needs oversight, namely by the federal government. I believe strongly in equal protection and I have argued many times on this blog and other places that local law enforcement can be and is often a pernicious influence on the well-being of a community.The federal government, specifically the Civil Rights Division of the Department of Justice, serves a vital role in the protection of American citizens from the abuses of their own police forces.

But the argument Foer and Konczal make is that because most civil asset forfeiture--Foer's exemplar of local government run amok--is run by and for state and local governments, the remedy for this should be federal. The point of my argument in Rare last week was that civil asset forfeiture is also the policy of the federal government and doesn't look to be abating any time in the near future.

Lost in Konczal's response today is how much of local police policy is driven by federal intervention. COPS grants, Byrne Grants, the War on Drugs, the 1994 Omnibus Crime Bill all had and continue to have direct influence on where and for what purpose policing happens.

Take these highlights of the 1994 Crime Bill, courtesy of Mariame Kaba:

1. $10.8 billion in federal matching funds to local governments to hire 100,000 new police officers over 5 years.
2. $10 billion for the construction of new federal prisons.
3. An expansion of the number of federal crimes to which the death penalty applied from two to fifty-eight (the bill also eliminated an existing statute that prohibited the execution of mentally incapacitated defendants).
4. A three strikes proposal that mandated life sentences for anyone convicted of three “violent” felonies.
5. A section that allowed children as young as thirteen to be tried as adults.
6. The creation of special courts able to deport noncitizens alleged to be “engaged in terrorist activity” on the basis of secret evidence.
7. Established guidelines for states to track sex offenders. Required states to track sex offenders by confirming their place of residence annually for ten years after their release into the community or quarterly for the rest of their lives if the sex offender was convicted of a violent sex crime.

I think Foer, Konczal and everyone else with passing knowledge of criminal justice policy agree that the War on Drugs undergirds these and other rampant abuses by local police. The War on Drugs IS federal policy. The War on Terror which further augmented the already creeping militarization of local police departments, IS federal policy. DHS and DoD grants are federal government incentives--some of which are "use it or lose it" grants that influence local police to buy more than they need or risk losing federal assistance.

Therefore, it is PATENTLY ABSURD to believe that the federal government neither has had nor  continues to have an active role in influencing and driving the policies of local police. Without the federal War on Drugs, it's hard to imagine civil asset forfeiture becoming the cash cow for local authorities it is today. Without federal direction and incentives, due to the War on Terror, it's hard to see how police became surplus dumps for the DoD and beneficiaries of DHS largesse. Without federal influence, it's hard to see how marijuana and other drug arrests for simple possession become the number one reason for being arrested in the United States. (I think it is no coincidence that driving under the influence, a crime that also drew federal incentives before it became a cash cow in itself, is the second leading cause of arrest in the United States.)

In short, yes, the states and localities are running rampant with the law enforcement tools they use. I never argued they didn't. But it is nothing short of fantasy to think that past and current federal policies didn't get us to this point. Looking to them as the beneficent saviors to the policies they created--beyond removing the incentives they did and continue to provide--seems a bit daft.

As I ended my Rare piece, criminal justice reform need not start at the federal government level. But if we want to look at the source for many of these problems we face in localities today, you cannot responsibly ignore the federal government's heavy hand in most of them.

bellum medicamenti delenda est

AAG West: 'Just So You Understand Where I'm Coming From'

There's an event in New York City going on right now called the "Strengthening the Relationship Between Law Enforcement and Communities of Color Forum." I don't know much about it, other than the NYPD could stand to learn a lot about how to deal with minorities fairly, so it sounds like a good idea, at least.

Today, Associate Attorney General Tony West gave a speech there in support of a new federal program to study ways to improve how law enforcement deals with persons of color. And while I know better than to endorse any government program solely based on its conceptual framework--let alone a loose framework laid out in a speech--I did want to highlight parts of the speech I think is important.

I come to this discussion as one who has been privileged to work with law enforcement for most of my career -- for several years as a federal prosecutor in a U.S. Attorney's Office; as a lawyer in the California Attorney General's Office; and now as part of the United States Justice Department's leadership. That experience has left me both profoundly grateful for and humbled by the dedication and commitment of so many in law enforcement who serve to keep our communities safer places to live, to work and to play; and who do so with integrity and in compliance with the law.

Theirs is not an easy task, and their duties are often performed under difficult and dangerous circumstances. And the reality for most officers, I believe, is that policing is not a job; it's an honor and profession. It's about service. It's about promoting safety and security and fostering strong neighborhoods for the residents who live there.

I also come to this discussion as my father's son. He was a man born and raised deep in the Jim Crow south. And when the time came for his eldest child and only son to take up driving lessons, dad was my teacher, imparting all the familiar lessons of keeping my eyes on the road and signaling before I turned.

And then there were the lessons not found in any driver's manual; lessons informed by family history and community experience: When -- not if -- you are pulled over by the police for no ostensible reason, keep your hands visibly planted at 10 and 2 until instructed otherwise. Always ask permission before reaching for your license and registration, and even then verbally explain what you're doing. No quick movements. End every sentence with "sir." Speak only when spoken to and never, ever talk back. 

Dad called these "survival skills," and I put them into practice on more than a few occasions, well into adulthood. I suspect that I'm not alone in bringing such divergent, perhaps even conflicting, perspectives to today's discussion.

It's Going to Take More than a Memo to Fix the Drug War

Today, the DOJ released a memorandum (PDF, hereafter "Cole memo") sent to all US Attorneys' offices to "update [the DOJ's previous] guidance" on federal policy as it relates to liberalized state marijuana laws. A lot of drug reformers are hailing this memo as a great step forward for the government. I'm less convinced.

As I've written elsewhere, we've seen DOJ memos on this topic before. Indeed, the opening lines of the Cole memo directly reference the 2009 Ogden memo and its 2011 clarification. The latter,  also written by Cole, effectively gutted the spirit of the Ogden memo's message to de-prioritize state-law compliant medical marijuana distributors: "The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law."

Looking at the language of today's memo, there is no concrete change in policy by the DOJ. Yes, it is encouraging  that the Attorney General wants to de-emphasize regulated marijuana distribution as a prosecutorial priority, from a politically symbolic standpoint. But U.S. Attorneys don't primarily operate within the realm of politics--they prosecute people for the federal government. They have the widest discretion imaginable and literally countless federal laws with criminal and civil sanctions from which to choose to prosecute any person in their jurisdiction. Those prosecutions cost money to investigate and they have finite resources with which to work--though much larger than the resources of the would-be defendants facing federal prosecution.

Aaron Swartz And Our Broken Justice System

I didn't know Aaron Swartz, and I have no idea whether his legal troubles contributed to his decision to kill himself Friday. But I do know his federal prosecution for downloading copyrighted information from JSTOR, the online database of social science articles, was overzealous and out of proportion for the alleged offense he committed. Indeed, even JSTOR itself was not supportive of the federal government's actions against Swartz.

For some context, I turn to Swartz's friend and one-time lawyer, Harvard Law professor Lawrence Lessig:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. (emphasis in original)

I would think most of us who deal with academic articles and journals for a living think of the services like JSTOR and Lexis-Nexis as quasi-necessary gatekeepers to information we can get on our computers that save us a trip to the local law library. (Indeed, I have a much higher respect for Swartz's similar actions against PACER, a service that charges $0.10 per digital page viewed of court—i.e., public—documents that have no protection of copyright or intellectual property claims. The DOJ opened an investigation but then dropped the case.) But I don't think any of us who may have shared a file against the terms of service should be prosecuted for essentially doing what Swartz did, albeit on a much larger scale.

The United States Attorneys office increased Swartz's original four felony charges to thirteen this past September. Before the increase, Swartz was already facing a potential $1m fine and 35 years in prison for taking the gates off of academic articles. Even if we decide that we want these things to be policed, a 35-50 year prison sentence for temporarily opening a backdoor to information academic navel gazing is patently absurd.

But while many are outraged at the actions of the U.S. Attorney in the wake of Swartz's death, it should be said that over-prosecutions are standard operating procedure for U.S. Attorneys offices across the country. As I've documented before, U.S. Attorneys—and Assistant U.S. Attorneys—have a very wide latitude in whom they prosecute for what offense. Even when a directive from Washington says, for example, "Don't go after medical marijuana dispensaries that are in compliance with state laws," U.S. Attorneys ramp-up efforts and prosecutions. Just this past week, Aaron Sandusky was sentenced to 10 years in federal prison for compliance with state law.

Being in the U.S. Attorney's office is often a stepping stone professionally. On one hand, an "accomplished" USA/AUSA can walk into a partnership at a Big Law firm, a giant payday which may be a professional end point in itself. On the other, some USAs/AUSAs have higher goals, such as federal judgeships or political office. Former Massachusetts governor William Weld made a name for himself zealously prosecuting white collar crime as a U.S. Attorney, and former mayor of New York City and one-time presidential candidate Rudy Guiliani made his bones taking down organized crime as U.S. Attorney in the Southern District of New York. (In that district alone, former AUSAs include, inter alia, two former Supreme Court justices, a governor of New York, one prominent Congressman, a former FBI director, and a former U.S. Attorney General.) If you're an ambitious young lawyer, the U.S. Attorneys Office is the place for you.

Behind any high profile federal case, there is a USA or AUSA standing to gain professional notoriety for it. The Martha Stewart insider trading investigation made headlines, but it turns out her initial "crime" was nothing, so she was actually prosecuted for making false statements to investigators. (That charge, too, was weaksauce.) Nevertheless, the man who prosecuted Stewart became the number two man at the DOJ and, for a time, Acting U.S. Attorney General. His name has also been bandied about for a possible SCOTUS nod. After all, at the end of the day, he got a conviction—that the underlying issue wasn't a crime is, to the DOJ, beside the point.

This is not to say it's all about headlines. Less ambitious USAs go for lower hanging fruit, like arrowhead collectors:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit. Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The U.S. Attorneys offices prosecute whomever they want, for whatever they want, and there is no shortage of laws—and potential laws—with which they can do it. Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government. Unchecked and vindictive prosecutions ruin lives, and those who are responsible for them should not be rewarded with political office.

We need federal attorneys, and we need them to have a certain latitude in what cases they do, and do not, pursue. But the Department of Justice should rein in its prosecutors and police their activities more closely. Directives from Washington should discourage unjust prosecutions, promote prudence, and tolerate—if not encourage—discretion. And, unlike the current system, these directives should have teeth. Disregarded memos are not emblematic of functioning government. Nor should win totals and headlines be the measure of a United States Attorney.

bellum medicamenti delenda est

PS: Those interested in learning more about rampant overcriminalization should look here and here. I also highly recommend Harvey Silverglate's book "Three Felonies A Day: How the Feds Target the Innocent."

"Made in the U.S.A." Is Not the Problem

I was watching the Senate Judiciary Committee's hearing today on the oversight of the Department of Justice. The sole witness was Attorney General Eric Holder, who would be called upon to answer for "Operation Fast and Furious," a failed DOJ/ Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) program that was meant to snare cartels in gun trafficking. I tweeted the first part of the hearing, but I wanted to discuss an op-ed by two state attorneys general that Chairman Pat Leahy (D-VT) had put in the Congressional Record (courtesy of Emptywheel's @bmaz):

Congress and the media have understandably focused on the missteps of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in the “Fast and Furious” sting operation that allowed suspected “straw buyers” to purchase weapons and transport them to Mexico in order to build cases against drug cartels.

However, the covert operation was terminated abruptly after its possible connection to the tragic death of Border Patrol Agent Brian Terry was revealed. Unfortunately, most of the recent criticism about the operation seems to be serving as a means to attack Attorney General Eric Holder and destroy the ATF, rather than to hold those behind Fast and Furious accountable.

The focus should be on the real public safety problem underlying this controversy: keeping arms from the Mexican drug cartels and protecting the security of the United States. However, many of the roadblocks faced by ATF and the Department of Justice are not being built by international criminals, but by Congress. (Emphasis mine)

The piece goes on to explain the prolific violence in Mexico and that 95% of the guns recovered from Mexican drug violence 'can be traced to the United States.' This sounds troubling, but it's really smoke and mirrors.

As I've detailed in the past, drug violence in Mexico is indeed rampant and unspeakably brutal. People are kidnapped, murdered, often tortured, strung up from overpasses, disemboweled, and/or beheaded. Does it really matter whether the murderers bought their ropes and machetes from stores in Tuscon or Tijuana?

It's the murderers, stupid.

If we could magically keep American guns out of the hands of the cartels, people would start being gunned down with a greater percentage of AK-47s sold in other countries than AR-10s made and sold in America, but they would still be gunned down. The cartels have planes, boats, and more than enough money to get whatever they want through their expansive networks. Making it marginally more difficult to acquire weapons may be good policy insofar as we want better, more sensible gun laws in this country, but it's hardly the "real public safety problem" facing our law enforcement agencies and the public at large.

The cartels make astronomical profits from selling the drugs banned by the United States' global prohibition policy. That money gets them access to the entire planet and all its terrible weapons that make their line of work so bloody. Ramped up interdiction efforts just make drug dealing more dangerous, but also more lucrative, and thus more enticing. So, when you think about it, the real public safety problem is the one that enables and incentivizes the cartels to commit heinous crimes in the first place: the Drug War itself.

Arguing about where the cartels bought their guns is like arguing the make of the bus that just hit you: it's trivial, at best, and probably a sign you have brain damage.

bellum medicamenti delenda est

UPDATE: This isn't meant to be a dismissal of the ineptitude that plagued Operation Fast and Furious. This was a post about the underlying problems, not the highly questionable tactics employed in that operation.