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January 2002
Battlefield Conversions
Reason talks with three ex-warriors who now fight against the War on
Drugs
Interviewed by Michael W. Lynch
Like any war, the War on Drugs has its good soldiers -- a varied
bunch, coming from all walks of life and filling all ranks. They
include eager volunteers, from the drug czars at the top of the
command chain to the beat cops, Drug Enforcement Administration and
Customs Service agents out in the field. The war also has reluctant
conscripts, such as state and federal judges compelled by mandatory
minimum sentencing rules to enforce laws that many see as
counterproductive and unjust.
Increasingly, the War on Drugs also has what its partisans might consider traitors --
former soldiers who have become convinced that U.S. drug policy is ineffective,
immoral, or some combination of the two. Reason Nationa
l Correspondent Michael W. Lynch recently spoke with three such figures who were once
integral cogs in the drug war machine.
The Cop: Joseph D. McNamara
Joseph D. McNamara started out as a grunt in America’s battle against drugs. "It was
sort of like the body count in Vietnam," says McNamara about the petty arrests for
heroin he made as a Harlem beat cop in the late 1950s
. "The department loved to count these drug arrests and release statistics to show we
were winning the war." In 1969, he spent a year as a criminal justice fellow at
Harvard Law School. Eventually, he ended up earning a P
h.D. in public administration. "I wrote my dissertation in 1973 and predicted the
escalation and failure of the drug war -- and the vast corruption and violence that
would follow," recalls McNamara. "I never published it
because I wanted a police career and not an academic career."
That’s exactly what he got. He served as chief of police in Kansas City from 1973 to
1976. In the bicentennial year, he moved on to become the top cop in San Jose,
California, a post he held until he retired in 1991. He c
urrently hangs his hat at the Hoover Institution at Stanford, where he conducts
seminars on the War on Drugs for law enforcement officials. The author of six books,
including the drug war detective novel Code 211 Blue, th
e 66-year-old McNamara is working on a new book titled Gangster Cops: The Hidden Cost
of America’s War on Drugs.
Reason: How did you get involved in what is now called the War on Drugs?
Joseph D. McNamara: I got involved as a foot patrolman in Harlem way back in 1957. A
few years later the heroin epidemic swept through Harlem and was devastating. And so
the police did what the police do: We arrested ever
yone in sight. It soon became apparent that it wasn’t reducing drug use or drug
selling. My eyes were really opened one day when my partner and I arrested a heroin
addict. The addicts gathered on the top floor landings of
buildings, which we referred to as shooting galleries. We used to routinely bust them
for possession of hypodermic needles and also for the big crime of having cookers with
residues of heroin.
One day an addict asked if we could give him a break. He said, "I’ll give you a pusher
if you let me go." We followed him down Lenox Avenue in uniform and in a marked police
car. As he talked to one man after another, it
struck me how little impact the police had on the drug problem. If we hadn’t known
what he was talking about, we would’ve thought they were just two men talking sports
or the weather or whatever.
Reason: Is this why police rely on informants and sting operations?
McNamara: Since the police can’t do their job the way they do it with other crimes,
they resort to informants and to illegal searches. This is a major problem underlying
police integrity throughout the United States.
Last year, state and local police made somewhere around 1.4 million drug arrests.
Almost none of those arrests had search warrants. Sometimes the guy says, "Sure,
officer, go ahead and open the trunk of my car. I have a k
ilo of cocaine back there but I don’t want you to think I don’t cooperate with the
local police." Or the suspect conveniently leaves the dope on the desk or throws it at
the feet of the police officer as he approaches. Bu
t often nothing like that happens.
The fact is that sometimes the officer reaches inside the suspect’s pocket for the
drugs and testifies that the suspect "dropped" it as the officer approached. It’s so
common that it’s called "dropsy testimony." The lying
is called "white perjury." Otherwise honest cops think it’s legitimate to commit
these illegal searches and to perjure themselves because they are fighting an evil. In
New York it’s called "testilying," and in Los Angele
s it’s called joining the "Liar’s Club." It has lead some people to say L.A.P.D.
stands for Los Angeles Perjury Department. It has undermined one of the most precious
cornerstones of the whole criminal justice process: th
e integrity of the police officer on the witness stand.
Reason: What role do institutional interests play in the drug war?
McNamara: One year when I was police chief in San Jose, the city manager sent me a
budget that contained no money for equipment. I politely told him that when you have a
police department, you have to buy police cars, uni
forms, and other equipment for the cops. He laughed, waved his hand, and said, "Last
year you guys seized $4 million dollars. I expect you to do even better this year. In
fact, you will be evaluated on that and you can us
e that money for equipment." So law enforcement becomes a revenue-raising agency and
that takes, in too many cases, precedence over law enforcement.
Reason: From the perspective of the working police officer, how has the
War on Drugs changed over the years?
McNamara: It has become the priority of police agencies. It’s bizarre. We make 700,000
arrests for marijuana a year. The public is not terrified of marijuana. People are
terrified of molesters, school shootings, and peopl
e stalking women and children. The police are not putting the resources into those
crimes where they could be effective if they gave them top priority.
Reason: There’s some controversy over whether the arrests for possession are really
for possession or if they are for dealing but prosecuted as possession. Do you have
any thoughts on that?
McNamara: It’s both true and false. Most low-level dealers are users, like the guy
that we finally did bust after we let the addict go. He was an addict, too, and he was
no better or worse than the guy we let go. But what
we had actually done, which is standard operating procedure in the drug war, is let
someone go who had committed a crime because they enticed someone else to commit a
more serious crime.
Reason: What role does race play in the War on Drugs?
McNamara: The drug war is an assault on the African- American community. Any police
chief that used the tactics used in the inner city against minorities in a white
middle-class neighborhood would be fired within a couple
of weeks.
It was a very radical change in public policy for the federal government to
criminalize drugs in the early 20th century. Congress was reluctant to pass it because
you had a very small federal government in 1914 and to int
erfere with the state police powers was a big deal. They couldn’t get this legislation
passed until they played the race card: They introduced letters and testimony that
blacks were murdering white families; the police in
the South were having trouble with "Negroes" because of these drugs; there were white
women in "yellow" opium dens. The same prejudice popped up in 1937 when they outlawed
marijuana.
If anyone tried to pass laws on those same bases today, they’d be condemned. Yet the
laws that we have are the last vestiges of Jim Crow. You don’t have to identify
yourself as a bigot anymore -- you can be for the drug w
ar and you really are getting "them."
Reason: Do you think there’s a greater risk in just questioning the operation of the
War on Drugs than there is to testilying and going along with it in unethical ways?
McNamara: For police chiefs, there is some wiggle room. They can support sterile
needle exchanges, medical marijuana treatment, and education diversion instead of
incarceration. But it’s asking an awful lot for them to co
me out and say, "Look, this drug prohibition is a stupid thing we shouldn’t have
started in 1914 and it gets worse and worse every year." That’s a big step for a
police chief. That’s asking them to commit career suicide.
Reason: Were you frustrated as a police chief with the constraints of the law?
McNamara: Enormously. Police chiefs are sitting on kegs of dynamite. Many of them are
really decent, progressive guys. They are worried about the disproportionate racial
impact and the corruption. But there’s nothing they
can do. There’s just too much money in it. You don’t have the ability, regardless of
the propaganda, to eliminate the code of silence. You don’t have unlimited power. You
have lots of constraints on how the police can di
scipline themselves, even for chiefs who are legitimately interested in doing so.
The Fed: Michael Levine
Michael Levine was born to fight the War on Drugs. He grew up tough in the Bronx
during the 1950s and was an accomplished brawler by junior high school. Though Jewish,
he identified with the Puerto Ricans moving into the
neighborhood and he picked up fluent Spanish, a skill that came in handy later when he
started doing undercover work in Latin America. He was personally motivated to fight
drugs: His kid brother was addicted to heroin. "I
saw it killing my brother," says Levine, 60. In 1965, Levine started a 25-year career
in federal law enforcement that included stints in the Customs Service, the Drug
Enforcement Administration, and the Bureau of Alcohol
, Tobacco, and Firearms. He traveled the world and arrested some 3,000 people.
Yet it wasn’t long before Levine noticed a gap between the rhetoric and reality of the
drug war. Says Levine, "Among DEA agents, the notion of really winning the drug war is
so far out of the question that anyone who even
mentions it is considered some kind of nut." Today, he serves as an expert witness on
all things drug-related and hosts a radio show, Expert Witness, on WBAI, Pacifica
Radio, in New York. He’s authored and co-authored nu
merous books, including Deep Cover: The Inside Story of How DEA Infighting,
Incompetence, and Subterfuge Lost Us the Biggest Battle of the Drug War (1990) and the
novel Triangle of Death: Deep Cover II (1996).
Reason: Why did you want to become a drug agent?
Michael Levine: I believed that it was the number one national security threat. I saw
heroin killing my brother. I saw people around me dying. I saw the crime rate
skyrocketing. I fell into the same trap that we are in ri
ght now. I blamed everything on those evil drug dealers.
Reason: After a quarter-century as an agent, how have you seen the drug war change at
the agent level?
Levine: It has become murderous. I remember back to the beginning of the Drug
Enforcement Administration, which was founded in 1973 by President Richard Nixon. At
that time, three agents went into the wrong premises in Co
llinsville, Illinois. They were prosecuted for breaking down the wrong door.
I was involved as an expert witness in the Donald Carlson case, which was on 60
Minutes. In that case, a multi- agency task force, outfitted in high-tech guerrilla
gear, crashed into the home of a Fortune 500 executive an
d shot him down in his own living room on the basis of the word of an uncorroborated
informant. Nobody was penalized for it. In fact, the people who did it were eventually
promoted.
As the expert witness, I had access to all the reports and I recommended that these
people be prosecuted. They paid no attention to the man’s civil rights. He had no
record or reputation for drugs. They did nothing but cr
ash through his door on the basis of an informant’s say-so. The drug war has succeeded
in militarizing police against their own people.
Reason: At what point did you start to question the War on Drugs?
Levine: I was sent undercover to Bangkok during the Vietnam War. I was hanging with
Chinese drug dealers in Bangkok. They were smuggling heroin into the U.S. in the dead
bodies of GIs who were transshipped through Thailan
d. The Chinese drug dealers invited me to go to the factory up in the Golden Triangle
area in northern Thailand, where much of the heroin sent to the United States
originated.
All of a sudden I was cut off from logistical support. I was given no money to pay my
hotel bills. There were these snafus going on with administrative stuff. They were so
strange and inopportune that the dealers were sta
rting to suspect me. It started to get really dangerous. A CIA agent informed me that
I wasn’t going undercover to the factory. I asked why. First he told me it was
dangerous, that we had lost people up there. But I insis
ted. Finally, he said, "Levine, our country has other priorities." That was the first
time I heard that phrase. That was the beginning of me doubting the intentions of our
leaders in the drug war.
Reason: What year was that?
Levine: That was 1971.
Reason: And yet you continued on.
Levine: I was a good soldier. I had come out of the military. My brother was still a
heroin addict. At that point, I thought my experience in Thailand was an isolated
incident here in Southeast Asia. I couldn’t conceive o
f my country lying to me.
Reason: In the chapter you contributed to After Prohibition: An Adult Approach to Drug
Policies in the 21st Century (Cato Institute), you argue that drug agents have come to
recognize that their efforts ultimately have no
impact on the drug trade. What’s the mindset of agents in this war?
Levine: Before you become an agent, you’re bombarded with stories of drug war
victories. It’s painted as heroic -- guys in guerrilla outfits and jungle gear
fighting the drugs everywhere. You want to do something for your
country. Then when you get in, the first thing you discover is that you can’t touch
some of the biggest drug dealers in the world because they’re protected by the CIA or
they’re protected by the State Department. Everyon
e from Carlos Salinas de Gortari of Mexico to Manuel Noriega to the contras in
Nicaragua to the Mujahedin in Afghanistan. Those of us who work overseas realize that
this whole thing is a three-card monte game, that it’s a
lie.
Reason: You say the cartel responsible for much of the cocaine in the U.S. during the
’80s not only didn’t fear the drug war but that they counted on it to increase the
price and to weed out smaller dealers. What is your
evidence for that?
Levine: It’s 1987 and I’m posing as Luis Miguel-Garcia, an undercover Mafia don who’s
half Sicilian and half Puerto Rican. I’m in a meeting at a restaurant outside of
Panama with another undercover customs agent and the r
uling faction of La Corporacion, the Bolivian cocaine cartel. They invited us to
Bolivia to look at their production facilities. At that time, the U.S. had begun its
paramilitary operations in Bolivia, which are now in Co
lombia.
So as a pretext, I told the man that we can’t go down there because we read in the
newspapers that the U.S. military is down there. He laughed and said, "That’s just for
the gringos. That’s not real." And his hand slid up
and down above the table. He said, "They have helicopters that go up and that go
down. We know what they are doing before they do." That’s the reality of the drug war.
It’s completely fictitious. It’s only for the Americ
an people.
Reason: You think that’s still the case?
Levine: It’s absolutely still the case.
Reason: You say, in your experience, that 90 percent of drug users are white. What do
you base this on?
Levine: That’s DEA statistics. I’ve spent much of my life in these ghetto
neighborhoods watching drug dealers. I would say 95 percent of the customers are white.
Reason: If this is the case, why are the statistics almost reversed when it comes to
drug arrests?
Levine: Because you go after the dealer. You have a lot of these think tanks, such as
The Lindesmith Center, saying that it’s a racist drug war and that the cops go after
users. That mistaken theory is based on the statis
tic of arrests for possession. I have made 3,000 arrests myself and, as a supervisor
of squads of agents for 17 years, have probably been involved in 8,000 arrests. A huge
amount of them are for possession. But none is fo
r using drugs. Not one. We didn’t go after users. We went after a dealer, street-level
or whatever, and charged them with possession because it’s easy to prove.
Reason: You said that when you were stationed in New York, news directors would call
up the DEA for a drug story on a slow news week and ask if they could go along with a
bust. Did you have personal experience with that?
Levine: I’ve been on video with my face blacked out. Dan Rather, 20/20, ABC News.
Reason: You actually had personal experience with news directors calling up and then
raids being hurried up or fabricated?
Levine: Here’s what happens. A news director needs a story. The special agent in
charge of New York, who we called Captain Video, because he was very media conscious,
would call our squad and say so-and-so is on the phone
from ABC. Do you have anything going? Do you got anything you can make an arrest on?
Is that manufacturing news? I don’t know. You tell me. That’s what would happen.
Reason: You claim to have witnessed numerous constitutional abuses. Can you give me
some examples?
Levine: The Carlson case is the best. The man was a Fortune 500 executive and had no
reputation whatsoever. He didn’t know coke from garden mulch. A criminal informant
pointed out his house and two other houses. Agents, w
ithout any investigation whatsoever, just crashed into his house and shot the man
down. That is now typical. 60 Minutes did a wonderful piece on it in 1993 called "The
Informers." There is no U.S. Constitution any more wh
en it comes to the drug war.
Reason: What is the relationship between informants, drug agents, and arrests?
Levine: Informants run the drug war. Ninety-nine percent of all drug cases start off
with a criminal informant. These informants are criminals and liars and they will
create crimes to make money and, at the same time, get
the protection of the people they are working for.
Reason: For all this, you’re against complete drug legalization. Why?
Levine: You can’t do it because certain drugs are just so addictive. I grew up in a
bad neighborhood in South Bronx. Like I said, my brother became a heroin addict. I
didn’t touch drugs because of the stigma. You weren’t
a victim in those days, you were a scumbag lowlife and you were a felon. That worked
on me. It was no surprise to hear from a poll taken during the first Bush
administration that of the 99 percent of kids in ghettos who d
on’t touch drugs, the main reason they give is because they are illegal.
What do you do when you legalize it? You are the government crack dealer and a
14-year-old kid comes up to you. Do you sell it to him? If you say no, then you’re
already talking about another prohibition, another market.
So what do you do when you sell legal crack to a guy who’s 30 and he turns around and
sells it to 15-year-old kids? That’s illegal! It doesn’t work. And, then you get into
other drugs like Angel Dust, methamphetamines, LS
D. What do you do with that stuff? Is it legal? You are talking about stuff that
directly affects the public safety.
Reason: Do you think people can use these drugs recreationally, like alcohol?
Levine: Some drugs, yes, and some drugs, no. The blanket prohibition of drugs, I
think, is wrong.
The Judge: James P. Gray
Most individuals arrested by a cop eventually appear before a judge. These days, they
won’t be appearing in Judge James P. Gray’s Southern California courtroom. Since
publicly questioning the U.S. drug strategy, the Orang
e County Superior Court judge has kept himself off the criminal calendar. But, like
Levine and McNamara, he has witnessed the reality of the U.S. drug war -- as a defense
attorney in the Navy, as a prosecutor in Los Angel
es, and as a judge. Says the 56-year-old Gray, "We’re flooding our courts with these
cases that aren’t making any difference whatsoever."
In 1998, Gray ran unsuccessfully against then-Rep. Bob "B-1" Dornan in the Republican
congressional primary for the 46th District in Orange County, California. Gray is
particularly frustrated with what he says is a major
pillar supporting the drug war: the informal prohibition of discussing options other
than, well, prohibition. "The World Affairs Council in Orange County invited then–drug
czar Gen. Barry McCaffrey to come here and debate
me on drug policy," says Gray. "His answer was, ‘No, I don’t have time to give a
debate, but I do have time to give a speech.’" Gray never booked a debate with
McCaffrey, but he put his side of the debate in a new book,
Why Our Drug Laws Failed and What We Can Do About It (Temple University Press).
Reason: What has been your involvement with the War on Drugs?
James P. Gray: I go way back. I am a former drug warrior. I believed in it and I did
it with a bold heart. I was a criminal defense attorney in the Navy and handled drug
cases. I was a federal prosecutor in Los Angeles in
the U.S. Attorney’s Office. For a short time, I held the record for the largest drug
prosecution in the Central District in California. Having been a judge since 1983,
I’ve seen in my own court that we just churn these p
eople through the system and we seldom get the real top bananas.
Reason: Did any specific event prompt you to question your involvement with the drug
war?
Gray: It just really evolved. I’ve been clipping newspaper articles now for about 20
years. It’s just the lights go on, and then the lights go on a little stronger. I
can’t say there was an epiphany. It just was kind of a
Chinese water torture. It just kept going and kept going, where eventually I just had
to say something publicly about it.
Reason: What is the typical drug case that comes before your court?
Gray: The typical drug case is a small amount of drugs that is being sold by somebody
to support his or her habit. You get into some larger ones. A couple of weeks ago we
had a 12-ton shipment of cocaine coming towards Sa
n Diego. But mostly it’s just the low-level users and the low- level drug sellers. And
we fill our prisons with them.
Reason: How do you adjudicate those typically? Does the law force you to adjudicate
them in ways you think are counterproductive?
Gray: The answer to the second question is certainly yes. There are documented
situations in which very conservative federal judges are literally in tears because
they are required by the law to sentence a particular offe
nder to a draconian sentence.
Reason: What’s the worst drug case you’ve had come before you?
Gray: I was on Juvenile Court for Abused and Neglected Children. I can’t get these
cases out of my mind. It was common that a single mother -- say she has two children
-- would hook up with the wrong boyfriend, who would
be a drug dealer. One fine day he would tell her, "Look, Maria, I’ll pay you $500 to
take this package across town to Charlie." She basically knows it has narcotics in it.
She gets arrested and gets five years in prison.
What happens to her children? They come into my court as abused and neglected
children. There’s the mother in a prison jumpsuit and handcuffs and I tell her the
truth. "You know, ma’am, you’re not going to be a functional
part of your children’s lives for the next five years." She starts to well up with
tears. Then I tell her that unless she’s fortunate and has either a close personal
friend or family member who is both willing and able t
o take custody of her children, they are very likely going to be adopted by somebody
else by the time she gets out of prison. She dissolves into tears.
Taxpayers can start to dissolve in tears, also. Because for the next year they’re
going to spend $25,000 of taxpayer money to keep this mother of two in prison. We’re
going to spend upwards of $5,000 a month to keep each
child in a group home until they are finally adopted by somebody else. So that’s
$60,000 a year per child, plus $25,000 for the mother. We are spending $145,000 of
taxpayer money to physically separate a mother from her c
hildren. It just doesn’t make any sense.
Reason: You write about a drug exception to the Bill of Rights.
Gray: When I graduated from law school in 1971, it was illegal for a police officer,
even after arresting you, to search anything that was outside of your grasp. If you
can reach over to something, then you could search i
t. But if a suitcase you were carrying was locked, the police could not go in there
unless they got a search warrant first. They couldn’t go into the trunk of your car,
they couldn’t go into the glove compartment, and the
y couldn’t go into the backseat.
That has totally been reversed. The police not only can search you and everything in
your car, but they can also search your passengers. They can search your mobile home,
which is in effect a home on wheels. They can go t
hrough and search everything.
Reason: There’s a debate over whether the arrests for drug crimes are casual users for
possession or dealers who are charged with possession because it’s easier to convict.
Have you thought about this?
Gray: Basically, I think that the prosecutors are right. We have people who are so
overwhelmed that they have to reduce the sentences by plea-bargaining. However, they
are all small pushers. They are all little guys. And
a lot of them are selling small amounts of drugs in order to support their habits,
because the drugs are so artificially expensive.
Reason: What has been the response of your colleagues to your speaking out on this
issue?
Gray: Anyone who talks about it with me in the elevator or in the judges’ lunchroom
agrees that what we’re doing is not working. Publicly, judges are pretty conservative
people. A lot of them don’t see themselves as socia
l workers. A lot of them are concerned about their effectiveness and getting
reelected, so they are just not going to say publicly what they believe privately.
That was really brought home to me when I gave four forums sponsored by the American
Bar Association. After doing so, I received a letter from the present chief justice of
the Supreme Court of a Southern state. He wrote,
"Dear Jim: You’re right. The War on Drugs isn’t working. You’re also right that it’s
fully appropriate for a sitting judge to discuss it because of what our position is in
society. And I see these cases all the time comin
g across my desk. What we are doing simply isn’t working. But I gave up a lucrative
law practice for this present job. I love my job and if I were to speak publicly, I
would have to spend all my time justifying myself. I
just don’t think I could do it."
Reason: You write that the only people whose positions have improved under the drug
war are those who make more money selling drugs and those who make money enforcing the
drug laws. Are you alleging a sort of bootlegger-B
aptist coalition, where lawbreakers and prohibitionists end up on the same side of an
issue?
Gray: De facto, yes. It was not set up that way. Just like it wasn’t set up to
discriminate against minorities. But it has evolved into an amazing alliance between
the drug lords on the one hand, who are making just obsce
ne amounts of money, and various officials who are getting paid money
to enforce this. They both have a financial interest and incentive in
continuing with the status quo.
When I was running for Congress a few years ago, I met individually
with two sitting congressmen from Orange County to try to get their
support. They both said that the War on Drugs isn’t working, but the
problem is even worse than I thought because most federal agencies
get extra money to fight the War on Drugs. It’s not just the obvious
ones like the U.S. Customs Service and the DEA. It’s the little guys
too, the Bureau of Land Management, the Bureau of Indian Affairs.
They are addicted to drug war funding.
End<{{{
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