-Caveat Lector- >From http://www.ndsn.org/JULY97/MILITARY.html The "Militarization" of the Anti-Drug Effort SPECIAL REPORT July 1997 by Chad Thevenot Since the end of the Cold War, the U.S. military has become increasingly involved in fighting the national anti-drug effort. Critics of this trend contend that "militarizing" domestic law enforcement operations, long considered the exclusive province of civilian police, is a dangerous intrusion into civilian powers by the military. The framers of the Constitution feared the influence of a standing army. Today many fear that military tactics and training are inconsistent with police activities limited by the Bill of Rights and the rulings of the courts. Supporters say military involvement is necessary to counter sophisticated and well-armed drug traffickers. The recent shooting in Texas of a U.S. teenager near his house by a U.S. Marine has put the issue prominently on the public's radar screen (see article in this issue of NewsBriefs). POSSE COMITATUS ACT A statutory bar to the use of the military for domestic police functions dates back to the Posse Comitatus Act (18 USC 1385) passed in 1878 (and subsequently amended): Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. The Posse Comitatus Act was enacted in response to civil liberties abuses committed under the military governors during the post-Civil War Reconstruction of the South. No one has ever been convicted under the Posse Comitatus Act, but there have been occasions when evidence obtained as a result of the Act's violation was ruled inadmissible in criminal court. Also, military personnel who violate the Act may be found personally liable for their actions in civil court (LTC Geoffrey Demarest, "The Overlap of Military and Police in Latin America," United States Army, Foreign Military Studies Office, Fort Leavenworth, Kansas, April 1995). REAGAN ADMINISTRATION AND CONGRESS REVISIT POSSE COMITATUS The formal commencement of the role of the U.S. Armed Forces in anti-drug law enforcement began in 1981. Congress considered what that role should be in a number of hearings when the prohibitions of the Posse Comitatus Act were specifically examined in the context of the anti-drug effort. In December 1981, the Military Cooperation with Civilian Law Enforcement Statute (10 USC 371-380) was enacted, allowing for military "assistance" to civilian law enforcement agencies generally outside the U.S., especially in combating drug smuggling into the U.S. Under this law, the military is generally allowed to give technical and support assistance, including the use of facilities, vessels, aircraft, intelligence, translation and surveillance. The statute specifically prohibits the direct involvement of soldiers in law enforcement, such as search and seizure, arrests or detention, and the use of military personnel in an undercover capacity (10 USC 375). Under Reagan, the military's role grew slowly because of the Pentagon's discomfort with its new mission and modest funding from Congress. Caspar Weinberger, Secretary of Defense, spoke out against military involvement in law enforcement. "Reliance on military forces to accomplish civilian tasks is detrimental to both military readiness and the democratic process," he said. But in 1983 then Vice President Bush's office coordinated the involvement of the Navy and the Air Force in drug interdiction activities in the Caribbean, in the Gulf of Mexico and along the coasts. PRESIDENT BUSH ESCALATES MILITARY INVOLVEMENT In 1989, President Bush named Dr. William Bennett as his "drug czar," and ordered a more vigorous military anti-drug involvement. Congress doubled the Department of Defense's (DOD) anti-drug budget from $200 million in 1988 to $438 million in 1989. During the Bush Administration, amendments to the National Defense Authorization Acts (Public Laws 101-189, 101-510, and 102-190), designated the Pentagon as the lead federal agency for anti-drug intelligence; integrated U.S. command, control, communications, and intelligence (C3I) systems; provided an improved interdiction role for the National Guard; directed the armed forces to conduct training exercises in known drug-trafficking areas in the U.S.; and expanded military authority to assist foreign police and military in anti-drug operations (emphasis added) (David Isenberg, "Militarizing the Drug War," CovertAction, Fall 1992, p. 42). In November 1989, under the direction of Defense Secretary Richard Cheney, Joint Task Force-6 (JTF-6) was established at Fort Bliss in El Paso to coordinate military and law enforcement anti-drug operations along the U.S.-Mexico border. "We serve as the eyes and ears of the Border Patrol," said Maureen Bossch, a spokesperson for JTF-6. JTF-6 troops help train drug agents, and provide transportation and engineering support, such as building roads and fences. JTF-6 circulates a 55-page "Operation Support Planning Guide" that markets the use of Green Beret units, Navy SEAL teams, and Marine patrols to police agencies. By fiscal year 1996, JTF-6 had a $24 million budget, and conducted 530 law enforcement support missions. Currently, the JTF-6 program includes 700 soldiers, with about 125 conducting surveillance on the border. CLINTON HIRES GENERAL TO LEAD ANTI-DRUG EFFORT, STRENGTHENS BORDER EFFORT Under President Bush, the military continued to focus on interdiction of the drug trade toward and into the U.S., and building a radar net over the Gulf of Mexico with radar ships and Airborne Warning and Control System (AWACS) planes. The Clinton Administration deemphasized that element of the strategy as ineffective and expensive, and ordered a shift in resources to military assistance in source countries, strengthening anti-drug efforts at the U.S.-Mexico border, and increased intelligence gathering. The Clinton Administration strategy has resulted in increased use of military personnel in civilian anti-drug law enforcement in the guise of "training." In his first year, Clinton raised the status of the "drug czar" to cabinet level. After the resignation in December 1995 of "drug czar" Dr. Lee Brown, a former chief of police, President Clinton nominated General Barry McCaffrey as director of the Office of National Drug Control Policy (ONDCP). McCaffrey, a 29-year Army veteran, had been Commander in Chief of the U.S. Southern Command (USSOUTHCOM) in Panama since February 1994, where, among his duties, he was responsible for coordinating anti-drug efforts in Central and South American countries. The Senate Judiciary Committee confirmed McCaffrey as the Director of ONDCP on February 29, 1996 and he then retired from the military. McCaffrey is the first career military officer to lead the anti-drug effort ("Drug Czar Lee Brown Resigns," NewsBriefs, January 1996; "Clinton Names General McCaffrey as "Drug Czar" Nominee," NewsBriefs, February 1996; "General Barry R. McCaffrey Sworn in as New Drug Czar," NewsBriefs, March 1996). [For a complete bio of Gen. McCaffrey, contact the NewsBriefs office.] DEA officials estimate 70% of illegal drugs now smuggled into the U.S. enter along the U.S.-Mexico border. The Clinton Administration's position appears to be to withdraw the military from the border in favor of expanding the civilian agencies such as the Border Patrol and the Customs Service. Commander Joe March, Assistant Secretary of Defense for Public Affairs told NewsBriefs that the Pentagon is already busy with military and peacekeeping missions around the world. March said the Pentagon would like to withdraw from domestic anti-drug missions if the Border Patrol is given enough resources to do the work without them. Last year McCaffrey said, "We have a major concern in not involving the armed forces in direct law enforcement in the United States. We would rather build law enforcement groups -- the Border Patrol, Customs, the Immigration and Naturalization Service -- adequate to protect the people." In late June, the House voted for the Traficant Amendment (Rep. Jim Traficant, D-OH) to put up to 10,000 U.S. troops along the 2000-mile long U.S.-Mexico border (H.G. Reza, "Military Silently Patrols U.S. Border," Los Angeles Times (Washington Edition), June 30, 1997, p. B1; Thaddeus Herrick, "Borderline Shootings," Houston Chronicle, June 22, 1997, p. 1A). DEPARTMENT OF DEFENSE INVOLVEMENT "Militarizing" the border increases law enforcement's reliance on military technology, equipment and intelligence, according to Timothy Dunn, University of Texas scholar and author of The Militarization of the U.S.-Mexico Border, 1978-1992. The Pentagon has contributed to the Border Patrol and other anti-drug agencies "excess equipment" used during and after the Vietnam War. Donated equipment includes Blackhawk helicopters, heat sensors, night vision telescopes and electronic intrusion devices. The Pentagon valued the transferred equipment at $260 million in 1995 (Timothy J. Dunn, "The Militarization of the U.S.-Mexico Border, 1978-1992," University of Texas, Center for Mexican-American Studies, April 1996 (University of Texas Press, 512-471-7233)). The military anti-drug effort also involves an integrated intelligence network. The El Paso Intelligence Center (EPIC), managed by the DEA, employs about 300 people, including personnel from the Department of Defense. EPIC is the oldest and largest of some dozen clearinghouses for drug intelligence. The North American Aerospace Defense Command (NORAD), once used to track nuclear weapons during the Cold War, is now primarily used to gather drug intelligence (José Palafox, "Militarizing the Border," CovertAction Quarterly, Spring 1996, p. 14; Jim Mallory, "These days, NORAD key player in drug war," Denver Post, April 23, 1997, p. 4B). The National Guard's domestic drug eradication and enforcement program is the largest anti-drug mission in the DOD. Each day, the National Guard is engaged in nearly 1300 ongoing counterdrug missions performed by about 4000 personnel on duty. National Guard forces operate under state command and control, and are coordinated by the National Guard Bureau. The DOD Coordinator for Drug Enforcement Policy and Support supervises the various National Guard anti-drug efforts. The Guard "now provides thousands of soldiers a day to assist local law enforcement, as well as the Customs Service, in the Southwest," McCaffrey said in 1996 (Richard Keil, "Dole pledges to give National Guard greater role in war against drugs," Buffalo News, September 2, 1996, p. A6; William W. Mendel and Murl D. Munger, "The Drug Threat: Getting Priorities Straight," Parameters, Summer 1997, pp. 110-124). DOD's anti-drug budget has increased by 2850% from $33.6 million in 1981 to $957.5 million for 1997. In 1995, more than 8,000 soldiers, sailors and Air Force personnel participated in 754 domestic anti-drug support missions that led to 1,894 arrests (Jim McGee, "Military Seeks Balance in Delicate Mission: The Drug War," Washington Post, November 29, 1996, p. A1). The Pentagon's strategy for the next decade will increasingly emphasize the military's expanding noncombat roles, including drug interdiction, officials said at an April 2 press conference. A Pentagon draft report said the armed forces should be equipped to take on many more such deployments than the U.S. has mounted since the end of the Cold War. Such assignments are "just reality" and are "out there for us," said Lt. Col. Tim Muchmore, an Army staff officer involved in the Pentagon's study. The draft report says that the end of the Cold War has brought a strategic "pause" that will leave the U.S. an unrivaled superpower until at least 2010. The report calls for the armed forces to master a full range of military roles -- what one official called "full-spectrum dominance" (Paul Richter, "Pentagon Plans Bigger Noncombat Role," Los Angeles Times, April 3, 1997, p. A19). SUPPORT OF "MILITARIZATION" Support for a larger military role relies heavily on the view that drug trafficking is a direct threat to national security, and that well-armed, sophisticated drug traffickers require a military response. In 1986, President Reagan signed a National Security Decision Directive, formally designating drug trafficking as a national security threat. President Bush affirmed that directive in 1989. President Clinton restated that theme in Presidential Decision Directives. For two decades, many in Congress have been eager to characterize the drug trade as a national security threat, and Congress consistently appropriates increased budgets for the national drug strategy. Rep. Bill Zeliff (R-NH), former chairman of the House Government Reform and Oversight national security, international affairs and criminal justice subcommittee, stated his support simply: "It all boils down to: Do we want to declare war on drugs or don't we?" Recently, U.S. Rep. Benjamin Gilman (R-NY), Chairman of the House International Relations Committee, said, "The most immediate and serious security threat to the United States today is international narcotics trafficking." His committee recently completed action on the Foreign Policy Reform Act of 1997 to make the issue a foreign policy priority (Rep. Benjamin Gilman, "Fighting Narcotics Should Be Foreign Policy Priority," Roll Call, May 12, 1997, p. 19). "Based not only on comparative threat assessments but also on the social and political realities of the decade ... the use of military force should be considered whenever the nation is severely threatened by any circumstance to which no adequate response is possible solely with civilian forces or resources," wrote William W. Mendel and Murl D. Munger in a recent article in Parameters, the U.S. Army War College quarterly. Mendel and Munger conclude that the U.S. "should increase the tempo of military counterdrug support and reconsider our force design for supporting the counterdrug strategy." Furthermore, supporters argue that military involvement in anti-drug activities can help maintain soldiering skills during peacetime. "Readiness for wartime can often be increased by participation in real-world counterdrug operations," said Mendel and Munger. CRITICISMS OF "MILITARIZATION" In January 1997, Cesareo Vasquez, a Mexican national, illegally in the U.S., was the first person to be shot by JTF-6 troops. Vasquez had fired a shot at a Green Beret, and later pleaded guilty to assault and weapons charges. On May 20, 1997, a JTF-6 Marine fatally shot 18-year-old Esequiel Hernandez. The Marines claim Hernandez fired on a Marine patrol. Hernandez, a studious high school sophomore and well respected in his community, was herding his goats near his house. The teenager was the first U.S. citizen killed by military troops on anti-drug patrol. Reportedly he was allowed to bleed to death and local prosecutors plan to take the case to a grand jury in July. For more information about Hernandez's shooting, see article in this issue of NewsBriefs. "The Constitutional issue is the breakdown of the bright line that we have traditionally maintained between military and law enforcement," said James X. Dempsey, formerly of the Center for National Security Studies in Washington. "There is a very strong claim that we are already pressing the outer bounds of what is constitutionally desirable." Even Gen. McCaffrey stated, "The biggest limitation, it seems to me, is our constitutional and political uneasiness with getting the armed forces involved in domestic law enforcement." Soldiers are trained to "vaporize, not Mirandize," says Lawrence Korb, Assistant Secretary of Defense under President Reagan. Korb, a senior fellow at the Brookings Institute, opposes putting troops on the border because soldiers are not trained to police in an environment of constitutional liberties. Militarization of domestic anti-drug enforcement efforts represents "the use of the military and its resources to control targeted groups of civilians," writes Timothy Dunn. Dunn describes this policy as the "low-intensity conflict doctrine." Critics argue that the open-endedness of the military's commitment to the anti-drug effort is its greatest potential hazard. "Where does it stop?" said Jon R. Thomas, former Assistant Secretary of State for International Narcotics Matters and once a supporter for a strong military role in the federal anti-drug effort. "Posse Comitatus was a real smart idea. It was basically saying, look, we don't want the military with police power," said Thomas. "Once the military was told by the Congress and the president that this was part of their mission," said James Dempsey, "then they were institutionally bound to make it permanent and pervasive." Korb agrees, "It should [have been] a stopgap ... but it's been institutionalized." About NDSN The National Drug Strategy Network is working for effective approaches to address the world's many drug problems by sharing accurate and up-to-date information about the many developments that affect drug strategy. NDSN is made up of individuals and organizations around the world, and is supported by the Criminal Justice Policy Foundation, a privately funded, non-profit educational charity that endorses policies that promote solutions to problems facing the criminal justice system. NDSN is an information sharing network which seeks to provide complete and up-to-date information about current events regarding drug issues. NDSN does not take any official positions on policy matters, and does not lobby or testify before Congress. Membership in the NDSN is not an endorsement of any position. NDSN welcomes all concerned about the problems of drugs: critics of the war on drugs as well as public officials, law enforcement officials, researchers, scholars, drug treatment professionals, judges, prosecutors, etc. We are concerned about all aspects of the drug problem -- illegal and legal drugs of all kinds; international, U.S., state and local developments; law enforcement; drug treatment; developments in the courts; conditions in the prisons; HIV and AIDS; medical marijuana; acupuncture -- the entire spectrum of issues related to drug policy. + + + + + >From http://www.sheriff.bayonne.net/history.htm The Office of the Sheriff is over 1000 years old and has a long and interesting history. Nearly as far back as the beginning of English and Scottish Law, the Office was the center of local administration of justice. The word "Sheriff" itself came about in an unusual manner. Originally the word "Reeve" meant an administrative official who had the general duties of a steward, or overseer or bailiff. His authority extended over various territorial area sometimes called his "Bailiwick" His title was often used in combination to indicate his jurisdiction. The Reeve of a Borough was called a Borough-Reeve, The Reeve of a Church, a Church-Reeve, and the Reeve of a Shire, the Shire-Reeve. The Shire was a territorial division roughly equivalent to a county. Eventually, a Shire-Reeve was shortened to Sheriff, and the word survives to this day. The Sheriff's principal function in the earliest days seems to have been to protect the interests of both the King and people against the powerful barons. He executed the King's Writs and presided in the county court and the hundred court. The Posse Comitatus is the entire body of people who may be summoned by the Sheriff to assist in preserving the public peace or in executing any legal precept which is forcibly opposed. The term is still in use today, although almost invariably the comitatus is dropped, and we speak of the posse, or the Sheriff's Posse. Presiding at the courts and holding the power to call out the posse comitatus gave the Sheriff more power than any other official in the County. In the early days the office was elective, but eventually the power to appoint Sheriff's was invested in the Crown. In certain sections powerful land owners became allied with the Sheriff, and they attempted to make the Office hereditary. At that period the Office was on a par with that of a member of Parliament, with the Sheriff being a Lord and holding a title. For a time the duties of the Sheriff included the collection of taxes within his Shire. The Sheriff also accompanied the judges of the assizes when they held court. Assizes are periodical sessions of the Superior Courts in the the Counties of England, held for the purposes of administering justice in trials. The Office of the Sheriff was to this country by the Pilgrims. The Sheriff's responsibilities in the colonies were basically that of collecting taxes and overseeing local elections as the representative of the Governor. Before the Revolutionary War, Sheriff's were appointed by the Governor and held office at his pleasure. The State Constitution, adopted July 2, 1776, provided for the annual elections of Sheriff's and Coroners, who were ineligible for reelection after three terms. These were the only county officials elected by the people. In the latter part of the 19th Center, the Constitution was amended and Sheriff's were elected for Three-Year terms. + + + + + >From November.Org Where Does the Slippery Slope of Militarization Lead? by Kevin B. Zeese, President, Common Sense for Drug Policy It wasn't long ago that it was a criminal offense, a violation of the Posse Comitatus Act, for active duty military troops to be engaged in domestic law enforcement. In fact, that was the rule for most of the history of the United States. A series of drug war amendments to Posse Comitatus during the 1980s under Presidents Reagan and Bush, has changed that and placed Marines on patrol at home. A team of low ranking Marines, led by a Corporal, were on drug war patrol in Redford, Texas, on May 20. On that day a fatal shot was fired by Corporal Banuelos and a young US citizen, Esequiel Hernandez, Jr. was dead. Zeke was herding his goats, carrying an old single shot .22-caliber rifle passed down to him from his grandfather. The Marines claim the high school sophomore fired two shots in their direction. They followed him for 20 minutes, then, they claim he raised his rifle again and the fatal shot was fired from an M16. The autopsy showed Zeke wasn't facing Corporal Banuelos when he was killed. Zeke lay on the ground unattended for 20 minutes and bled to death. Redford citizens say they felt invaded, treated as if they were the enemy and had one of their best and brightest taken from them. A grand jury was convened, but this made the injustice worse. The grand jury was at best a mockery. It included the Assistant Sector Chief of the Border Patrol who was part of the administration that asked the Marines to come to the border and one of the people responsible for their supervision. It also included the wife of a Border Patrol officer, a Border Patrol retiree, and two Customs Officers. The judge found no conflict of interest and District Attorney Valadez said it was good to have people on the jury who "knew how to get things done." The DA did not seek an indictment, he just presented the evidence. Unfortunately, that did not include the Redford residents who heard the single shot from the Marines, not the multiple shots that the Marines claim occurred. Between the time of the fatal shooting and the no-bill by the grand jury this month the Department of Defense reacted strongly. They were upset that their soldiers would be subjected to criminal prosecution for doing their duty. On July 30, the first day of the grand jury, DoD spokesperson Navy Lt. Cmdr. Scott Campbell told USA Today this was "not fair to the members of our armed forces." As a result Defense Secretary William Cohen reportedly will ask the border states to sign agreements to provide immunity to local criminal laws, just as we have "status of forces agreements" with foreign governments. This is protection that police officers in the United States do not have. In fact, the reaction should have been an apology for the tragic incident and a change in policy. Secretary Cohen should have said it was a shame Zeke had to die in order for us to be reminded that military enforcement of civilian law is wrong. Our soldiers are not trained to make arrests, Mirandize and bring to justice; they are trained to kill. The people of Redford are reacting with strength and forbearance. They have gone back to their history books and re-read the Declaration of Independence. Two of our grievances against King George were for using the British Army against us and "protecting them, by mock trial, from punishment for any murders which they should commit. . ." They see the refusal to indict as the beginning of the battle against militarization, not the end. The death of Zeke must be remembered. Militarization of the drug war must be stopped. If we do not act in his memory the slippery slope of militarization will pick up speed. We have come a long way in less than two decades, from prohibition of military involvement to discussions of immunity for fatal shootings. If we do not take action now, Zeke's death will become an excuse for greater militarization, not less. Kevin Zeese, Esq. is a prominent figure in the Drug Policy Reform movement. He is former Chief Counsel and Executive director of NORML and a co-founder of the Drug Policy Foundation. Currently Mr. Zeese is the president of Common Sense of Drug Policy. + + + + + + + + + + + >From November.Org Pay no attention to the man behind the curtain Procecutors: The Failure of Common Sense By G.Patrick Callahan, Prisoner of War in America Law can be a tremendous bore. It is tedious, time consuming, often farcical and usually about as interesting as a stack of stale crackers. Once you have been arrested, however, you either engage in the process or you lay like an ignorant slave under its lash. Because the reading skills of most Americans is so low - and this is particularly true of the inmate class - law is akin to hieroglyphics: indecipherable, as if laid down by the Pharaohs. Actually, it is neither. Oh, they try - the attorneys and the legislators - this is one of the reasons they cling to Latin phraseology, words like in forma pauperis and non compose mentis and all the other Latin catch words that awe and amaze us. It's not that lawyers can speak Latin , but its use esoterically isolates plain understanding and conveys an element of mystery to the layperson. Part of this usage involves form and custom, but when added to the often overstuffed verbiage many legal authorities enjoy, keeps law confusing to the Average Joe, it keeps him intimidated and feeling helpless - it's an old ploy, it convinces him he needs professional help. It is a bit like the Wizard of Oz, so you have to look behind the curtain to see it for what it is. The singular most harmful side effect of this country's ill-fated war on (some) drugs, aside from Constitutional erosion, has been the shifting of power - called "discretion" in legalese - from judges to prosecutors in state and, particularly, federal courts. This dramatic change came about suddenly with the Sentencing Reform Act of 1984, a prophetic year indeed. The subsequent US Sentencing Guidelines were actually implemented in 1987 and is called "new law" generically, by all concerned. The Sentencing Reform Act was a bad attempt - however well meaning - to cut down on disparity in sentencing, whereby on the East Coast a defendant might get a six year sentence for an offense and on the West Coast he might only get six months for the same conduct. Congress did not like the way judges were running things, the thinking being that judges had far too much discretion and were arbitrary. There was element of truth in this, although it is a constitutional mandate that the judiciary is to remain strictly insulated from the legislative and executive branches of government, ostensibly removed from criticism and pressure from either. What has happened is a melt down of these three branches of government into an identical agenda: to look tough on crime, no matter what the collateral costs. The recent furor over New York District Judge Harold Baer, Jr., is a perfect example. When Judge Baer ruled that police had no probable cause to stop and search a vehicle that turned out to be loaded with drugs and drug proceeds, everyone on Capitol Hill was calling for his resignation. Bob Dole, at that time a presidential candidate, made political hay by his call for Judge Baer's impeachment. Even the White House got in the act: all contrary to Article I, Section 8, Article III and VI of the Constitution. [See also No. 81, Alexander Hamilton's treatise on separation of powers and autonomy of the Judicial Branch, The Federalist Papers, Rossiter, Mentor Ed. 1961.] Judge Baer buckled under the pressure and with prestidigitation, made certain alterations in his original decision, thus ensuring a trial for the defendants who were doubtless, illegally stopped and searched. So it is a myth to believe that judges are immune from the furnace blast of opportunistic politics and all this tough on crime bombast: they have become task-masters for Congress and the executive branch. It is now a conspiracy of silence, with few notable dissenters, such as Judge Myron Bright of the Eighth Circuit, Juan Torruella of the First Circuit and Judge Richard Posner of the Seventh, who have each come out in forceful opposition to the sentencing practices evolved in the war of drugs. These courageous fellows are an exception to the general rule and, despite their charters, which ostensibly grants judges great autonomy and independence, most have been conspicuously silent as this dirty civil war plows millions of non-conformists and their families down to wreck and ruination. This sort of judicial cowardice is not historically unusual: the US Supreme Court endorsed car searches, wire tapping and double jeopardy to enforce alcohol prohibition. German judges, cowed by the Nazi Party, meekly acquiesced to mass deportation and murder with decisions that were an intricate semantical dance underwriting genocide. The excellent film "Judgment at Nuremberg" reveals that country's tragic judicial submission to the State. We will get little help from the Judiciary, and how many times have we heard this: "While I'm reluctant to give you this 30 year sentence (and take your life and destroy your family), I just don't have any choice (if I want to keep my job)." Fact is, we have heard this too much. Judges in this country have dished out tens of millions of years in prison time to non-violent drug law violators during this war. Of course, the term "war" implies engagement, combat, being fired upon, and shooting back. Hype aside, this is a persecution rather than a war and for all the rhetoric, the rate of police killings in 1996 wasn't much higher than that of 1959 and, as usual, most were from domestic disputes, an ever present danger. What we have gained by this hysterical shunting of discretion from judges to prosecutors is handing over unbridled power to those who are proven to be the least capable of using it sensibly. Prosecutors and their eager lieutenants the Probation Officers, are the worst qualified to handle "truth in sentencing" and the last ten years of the federal guideline system have been an orgy of injustice unprecedented in American law, perhaps slavery the sole exception. Ten and twenty year mandatory sentences for first-time, non-violent drug offenders is de rigueur. Prosecutors use such laws and guideline schemes like a bludgeon; they have effectively destroyed fairnesscalled "equity" in lawand common sense went overboard many years ago. The basic tools provided to federal prosecutors, aside from limitless budgets, are the US Sentencing Guidelines and its attendant draconian drug penalty schedule, with the minimum mandatory sentencing legislation. These are separate mechanismsyou can get a minimum mandatory sentence without necessarily engaging the more draconian aspects of the sentencing guidelines, but when they work in tandem, a defendant's sentence is driven to ridiculous levels. He may do a ten year minimum mandatory sentence and then be faced with fifteen to twenty additional years for guideline entrance levels or enhancements added on consecutively. It is a lunatic machination, more worthy of a facist regime than an enlightened nation of cherished personal freedom poised on the threshold of the Twenty-First Century. Plea bargains and coercive power are other prosecutorial tools: these inhumane sentencing laws can be used to convince even flesh and blood to turn informer against its own. Prosecutors deny they extort such cooperation, but in fact they most certainly do and each time this is done, friendships, associations and entire families endure the consequences. Lest one think this is exaggeration, read this: It is common for federal prosecutors to threaten drug defendants with mandatory sentences unless they incriminate others. Many defendants decide to inform on their associates and friends in an effort to get a lighter prison sentence. This practice frays the bonds of personal trust and corrodes the community cohesion that might otherwise act a buffer to violence. ["The Real War on Crime," from the Report of the National Criminal Justice Commission, Donzinger, 1996. HarperPerennial.] In other words, there will inevitably be retribution, but moreover, these practices breed mistrust and suspicion among a vast segment of the population. This is what police states do. Prosecutors also subvert the Constitution by making an implied threat of one's right to trial by jury, a Fifth Amendment guarantee. While it had traditionally been a right under the Constitution to have a public trial by a jury of one's peers, God help you now if you do: federal prosecutors win about 97% of their cases - in large measure due to a vast array of well funded tactics, many of them illegal - and if you lose at trial, you will get the absolute maximum sentence the prosecutor can give you. If you testify on your own behalf, and whether you lie or tell the truth - come sentencing time you are open for a charge of "obstruction of justice", in other words, perjury, which will net you an additional five years in prison consecutive to your sentence. However, if a prosecution witness lies, and they very often do, they are immune; totally immune. Each enhancement runs your sentence higher. Innocent people have been known to opt for a guilty plea rather than take such a risk at federal trial. Chief Judge McNichols of the Eastern District of Washington made this point forcefully in United States v. Boshell, 728 F. Supp. 632, 637-38 (ED Wash. 1990). Noting that before the Guidelines, "disparities were controllable and tolerable because decisions were public and reviewable." He points out that under the current regime: Congress has... shifted discretion from persons who have demonstrated essential qualifications to the satisfaction of their peers, various investigatory agencies, and the United States Senate, to persons [Assistant United States Attorneys] who may be barely out of law school with scant life experience and whose common sense maybe an unproven asset. [US v. Harrinton, 947 F.2d 956, 957 n. 10 (DC Cir. 1991)] Add to this number the amount of prosecutors who are too inept to practice law beyond the security of a government agency and add to it those numbers who simply enjoy inflicting themselves upon their fellow man in the name of justice. We daresay that the total of conceivably defective prosecutors might well surpass those who possess a modicum of common sense and foresight. Or are these worthy traits simply gone: we have how arrested over ten million people for drugs in this country. Because of the many options available to him, the prosecutor is free to introduce as much sentencing disparity into the system as he may choose. Prosecutors, sometimes for good reasons, sometimes for bad - just like some judges before themhave done just that. Every district judge has witnessed, and witnessed many times, the bringing of wholly disparate charges against defendants whose conduct is essentially identical, the consequences being that the judge is required by the guidelines to impose sentences that he may consider, or that objectively are, arbitrary and discriminatory in every meaningful sense. [United States v. Roberts, 726 F. Supp. 1359,1366 n. 46 (DDC 1989).] One wonders whether the Guidelines, in transferring discretion from the District Judge to the prosecutor, have not left the fox guarding the chicken coop of sentencing uniformity. [Harrington, 947 F. 2d at 965 n. 5.] The above commentary was made way back in 1989. What has ensued is the fox, in a kind of blood frenzy peculiar to genus vulpes, has maximized sentences for hundreds of thousands of non-violent, low level offenders. It has virtually turned the United States into a gulag and very nearly ruined the criminal justice system. Defendants who refuse to turn in their friends, relatives and associates, and those who elect a trial by jury, are routinely given decades of prison time, even for relatively small amounts of controlled substances. In their zeal to enforce statutory lawthe US criminal codes prosecutors armed with minimum mandatory sentencing and the Sentencing Guidelines, are actually destabilizing American society. Nearly six percent of the adult male population is now behind bars and three percent of the workforce languishes in prison. So many black males are incarcerated that it is affecting marriageability is the inner cities ["The Real War on Crime", the Report of the National Criminal Justice Commission]. So many people have turned State's evidence against their friends and relatives to receive less or no prison time at all that violence and revenge becomes inevitable; but moreover, like any police state, we are being turned into a nation of informers by a government that makes a federal model of personal betrayal. Were this happening on a small scale, involving for instance a certain amount of bank robbers or murderers, these policies might suffice, but it must be remembered that this is being done on a massive nationwide canvas affecting literally tens of millions of individuals. The D.A.R.E. (Drug and Alcohol Resistance and Education) program's greatest success may not ultimately be in the numbers of children it dissuaded from experimenting with psychoactive substances, but in the multitude of informers and snitches it produces. It is a bitter irony that the worry over the psychological health of the country, while focusing on illicit drugs, ignores not just the legal drugs such as nicotine and alcohol and valium and prozac, but actively encourages perhaps the most insidious rot a populace can contract: betrayal as a virtue. It was this we most decried about communism. Although one rationale for reducing judicial discretion is to minimize sentencing disparities (different sanctions for the same offense), close disparities continue through the exercise of prosecutional discretion. Prosecutors' charging and plea bargaining decisions now set sentences. Unlike any sentences set by judges, however, prosecutors' decisions are unreviewable, and the criminal justice system lacks mechanisms to hold prosecutors accountable for their choices. In a regime of harsh mandatory sentences, moreover, prosecutors have even greater leverage in plea bargaining than in most criminal cases: the stark disparity between harsh mandatory sentences and the terms prosecutors can offer in plea bargaining leaves defendants little choice but to give up their fight to trial and plead guilty. "Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders." Human Rights Watch, March 1997, Vol. 9 No. 2(B)] While prosecutors actively encourage or coerce betrayal to make their cases, and not take them to trial-this is ironically called "cooperation"-they simultaneously and seemingly with no thought to fiscal consequences, put legions of peripheral and low level drug offenders away for prison terms that astound the Western World. Recently prosecutors in Atlanta, Georgia asked for and received a 30 year sentence for a Colombian housewife and mother of four small children on a money laundering charge. It seems the woman was storing a drug ring's cash in her home. The money laundering laws were made tougher not long ago and this was a muscle flexing exercise, however, it should give us pause to consider the wisdom of such harsh sentences. Including legal proceedings, 30 years of her incarceration will cost the American taxpayer about $1 million. If she develops serious medical problems, that figure will skyrocket. Her "job opening" was immediately filled, of course, and how many Colombian housewives can we lock up before we go broke? Once the FBI and DEA manage to lock up all the Colombian housewives engaged in laundering things besides clothes, do we then lock up all the Mexican housewives similarly employed? Does it make fiscal sense to imprison apparently limitless numbers of foreign nationals for decades at such great expense, to feed, house and clothe them, to care for their medical needs for dozens of years? Does it make sense to sentence a man to life in prison because his third felony was for possessing an ounce of marijuana or four grams of cocaine? Unsurprisingly, many prosecutors eagerly support this wasteful nonsense and relish sloshing buckets of taxpayer dollars down the rathole. While it may not bother prosecutors, it ought to bother the American taxpayer who has to foot the bill. Egregious drug sentences have also persisted because the courts have not upheld federal and state constitutional prohibitions on cruel and unusual punishment. Although these prohibitions extend to excessive sentences, few drug offenders have succeeded in having disproportionately harsh sentences overturned as unconstitutional. The courts have failed to exercise their role of safeguarding individuals from abuses decreed by political majorities. Instead, they have deferred to legislatively dictated sentences, however draconian. New York's highest court, for example, recently upheld against constitutional challenge a sentence of fifteen years to life imposed on a seventeen-year-old girl convicted of a single sale of two ounces of cocaine. [Id. Human Rights Watch, Vol. 9] It has been nearly 30 years since the Controlled Substance Act of 1970 and millions of Americans have been arrested and sentenced to tens of millions of years in prison. In order to make room for them, this country consistently releases repeat, violent offenders: rapists, armed robbers-even murderers. Prosecutors make cozy deals with so-called kingpins who turn in their underlings in exchange for little or no prison time. Friends turn on friends, brothers on sisters, and the Justice department cannot build prisons fast enough. It is drug war fever, the prosecution run amok, and it must be stopped: It is difficult to believe that the possession of an ounce of cocaine or a ... "street sale" is a more dangerous or serious offense than the rape of a ten year old, the burning down of a building occupied by people, or the killing of another human being while intending to cause him serious injury. -Judge James L. Oakes, United States Court of Appeals for the Second Circuit. Many US. Attorney's offices have 25% to 30% deadwood. If these people were in private law firms, they would have been on the street a long time ago. -US District Judge JP Stadtmueller, (ex-US Attorney), Forbes Magazine, March 15,1993. About November.Org We are a growing body of citizens whose lives have been gravely affected by our government's present drug policy. Our goal is to make our voice heard, expose the folly of America's War on Drugs and demand change in current policy. <Picture> Our membership consists of the casualties of America's War on Drugs. We are inmates, parents of those incarcerated, wives, sisters, brothers, children, aunts, uncles and cousins. Some of us are simply friends, but all of us are concerned that our numbers are rising in absolutely horrific proportions. The November Coalition is a grassroots organization dedicated to educating the public about the destructive increase in prison population in the United States and the steady erosion of our civil rights and freedoms by the federal government. We are dedicated to the preservation of the Constitution of the United States, the Bill of Rights and to the power of the several states. November Coalition seeks to inform the citizenry - particularly those who may be complacent - on the present and impending dangers of an overly powerful federal authority acting far beyond its constitutional constraints. Aside from being a predictable failure, the war on drugs is a fraud that has resulted in the merging of state and federal law enforcement. It is our conviction that the war on drugs does nothing but insure the black market for drugs, their high profitability. Citizens are not safer, only less free. We see the drug war as the primary reason for the exploding prison population with its attendant societal and monetary toll and these costs are too high: there are currently 1.7 million Americans behind bars in this country, a rate that is seven times that of Europe, and these monstrous incarceration rates, and the results they have on marriages and families is a national disgrace. The war on drugs promotes violence and social instability. There are now millions of "drug orphans" with one or both parents in prison. We seek to enlighten people about unjust sentencing laws, the increasing turmoil in the federal judiciary and about the manner in which politics are turned into law - bad law particularly - in ways inconsistent with safeguarding our essential freedoms. Our message is important, a case of now or never, and it is vital for our readers to comprehend that government is not society, but only a societal tool. That concept has been reversed and it is time to get it straight again. G. Patrick Callahan, POW in America ~~~~~~~~~~~~ A<>E<>R The only real voyage of discovery consists not in seeking new landscapes but in having new eyes. -Marcel Proust + + + + + + + + + + + + + + + + + + + + + + + + + + + + Forwarded as information only; no endorsement to be presumed + + + + + + + + + + + + + + + + + + + + + + + + + + + + In accordance with Title 17 U.S.C. section 107, this material is distributed without charge or profit to those who have expressed a prior interest in receiving this type of information for non-profit research and educational purposes only. DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! 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