Reason Magazine - Contributors

Washington's Biggest Crime Problem

anderwl@prodigy.net (William Anderson) erinjack@aol.com (Candice E. Jackson) — Thu, 01 Apr 2004 00:00:00 EST

Michael Paul Mahoney was convicted of selling methamphetamine in 1980 and served 22 months in a Texas prison. Upon his release, he went straight, opening a pool hall in Jackson, Tennessee. After closing up each night, he would deposit the day's receipts at the bank, carrying a small .22-caliber pistol for protection.

In 1992, after the pistol was stolen, Mahoney bought a new one at a pawnshop, filling out the required paperwork. After the Bureau of Alcohol, Tobacco, and Firearms investigated the purchase, the U.S. Attorney's Office in western Tennessee charged him with violating a federal law that bars "career criminals" from owning a gun. (He qualified as a career criminal because he had sold methamphetamine to an undercover officer three times.) Although the judge at Mahoney's trial protested that it was pointless to pursue such a case against a now-law-abiding citizen, federal sentencing rules tied his hands. Mahoney, who was 39 when he was convicted in 1993, received a 15-year sentence. By contrast, people convicted under Tennessee's law prohibiting gun ownership by felons (which did not apply to Mahoney, since his drug conviction was more than 10 years old) can receive sentences of less than a year.

In 2000 Memphis business owner Logan Young, who had been a close friend of the legendary University of Alabama football coach Paul "Bear" Bryant, was accused of paying some $150,000 to two Memphis high school coaches in an attempt to steer a prize recruit to Alabama.

The National Collegiate Athletic Association investigated the charges and placed Alabama's football team on probation for two years. Young arguably could have been charged with violating a Tennessee law that forbids bribes to "public servants," a crime that carries a penalty of three to six years in prison. But then prosecutors would have had to prove that he actually bribed the coaches, a charge he hotly denies.

Instead he was indicted last fall on three federal charges derived from the alleged bribery: conspiring with the coaches; aiding and abetting travel across state lines "with the intent to further unlawful activity"; and trying to conceal the alleged payments by withdrawing the money in amounts of less than $10,000, the threshold for a currency transaction report to the Internal Revenue Service. Each count carries a five-year prison term.

In 1996 Edward Hanousek Jr., a road master for a railroad company running between Alaska and Canada, was convicted of negligently discharging a harmful quantity of oil into the Skagway River, a U.S. waterway, in violation of the Clean Water Act. An independent contractor had accidentally ruptured a pipeline while attempting to clear rocks off the tracks. Hanousek was off duty and at home that day, nowhere near the accident site, and he had no knowledge of the pipeline rupture until after the fact. The government nevertheless prosecuted Hanousek, a federal jury convicted him, and he received a sentence of six months in prison, six months in a halfway house, six months of post-release supervision, and a $5,000 fine.

These are just three of the many cases that illustrate how federal criminal law has overstepped its proper bounds, prescribing draconian punishments for offenses that should be handled at the state level or that should not be considered crimes at all. During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone's rights but only because Congress says so.

When Congress creates a federal penalty for actions traditionally prosecuted at the state level, it violates the core constitutional principle of federalism, which prohibits Congress from legislating on local matters. Such laws also burden the federal court system, promote selective prosecutions, and stack the deck against defendants. In addition to duplicating state law, Congress has created derivative offenses, such as racketeering and mail fraud, an approach that makes convictions easier to obtain because the offense consists mainly of otherwise innocuous behavior. In Logan Young's case, for example, the government does not have to prove bribery. For two of the counts against him, all it has to prove is that he crossed state lines and withdrew money from his bank account in pursuit of his alleged bribery scheme. The actions are not in dispute, and it is relatively easy for a jury to infer criminal intent.

Getting even further from the essence of criminal behavior, many federal laws impose criminal sanctions for so-called public welfare offenses. These laws often do not require a "guilty mind," or mens rea, which historically has been an essential element in common law crimes. Indeed, public welfare "crimes," such as violations of environmental regulations or insider trading laws, need not involve even unintentional harm to third parties. The overreaching of federal criminal law is especially troubling because institutional and procedural features of the federal system invite prosecutorial abuses, make convictions easier to obtain than in state systems, impose harsh mandatory sentences even for nonviolent acts, and result in disparate treatment of similarly situated defendants.

Uncountable Crimes

The trend toward federalization of crime (and criminalization of everything) has prominent critics. In 1998 Chief Justice William H. Rehnquist warned: "The number of cases brought to the federal courts is one of the most serious problems facing them today....Over the last decade, Congress has contributed significantly to the rising case-load by continuing to federalize crimes already covered by state laws....The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system." Supreme Court Justices David Souter and Anthony Kennedy also have cautioned Congress against turning the federal courts into general police courts.

In an October 2003 column published on Townhall.com, Rebecca Hagelin, vice president of the Heritage Foundation, noted: "America started out with three federal laws -- treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books -- more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist." She continued: "Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control -- creating crimes where no evil existed, pinning blame where no harm was intended?"

The first significant expansion of the federal criminal code occurred in the late 19th century, when Congress established penalties for "misuse" of the U.S. mail system and passed antitrust laws. By 1915 there were about 3,000 federal prisoners, serving time for crimes such as treason, espionage, mail fraud, antitrust and banking offenses, and violations of the newly enacted Mann Act, which made it a crime to transport a woman across state lines for "immoral" purposes. More than two-fifths of federal criminal statutes were enacted after 1970, when Congress and the White House took on organized crime, drugs, pollution, and other politically charged targets. In 1981, when Ronald Reagan took office, there were about 20,000 federal prisoners, a figure that rose to 53,000 by 1989. The number has more than tripled since then, to about 171,000. The number of federal prosecutors also has shot up, from about 1,500 in 1981 to more than 7,000 today.

Although the federal prison population has increased dramatically, it is still dwarfed by the 1.9 million or so inmates in state prisons. Due to limitations of time and funding, federal criminal prosecutions are highly selective, creating dangerous incentives for federal prosecutors to engage in vendettas against unpopular defendants (such as Michael Milken and Martha Stewart), looking for cases that offer maximum political advantage. The average sentence for nearly every type of crime punishable by both federal and state law is higher under federal law, making it easy for prosecutors to force guilty pleas from people who otherwise might be inclined to fight the charges against them.

Of the approximately 77,000 defendants convicted on federal charges in 2001, 97 percent pleaded guilty or no contest. Out of the more than 121,000 cases opened by U.S. attorneys that year, only 5 percent involved violent crimes such as rape and murder (most of which were connected to other federal crimes). Forty percent of the cases involved "public welfare" offenses such as regulatory and immigration violations, and more than 30 percent involved drug offenses. In 2001 only 10 percent of the people incarcerated in federal prisons had committed violent crimes.

Tough on Crime -- And the Constitution

Members of Congress do not hesitate to enact criminal laws addressing whatever the public concern of the day happens to be, whether or not the Constitution gives them the authority to do so. In just three years in the mid-1990s, Congress passed criminal statutes dealing with anti-abortion violence, carjacking, failure to pay child support, animal rights terrorism, domestic violence, telemarketing fraud, computer hacking, and art theft, among many other offenses already covered by state laws.

The sometimes violent anti-abortion protests of the early 1990s gave rise to the Federal Access to Clinic Entrances (FACE) Act of 1994, which makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence. The upshot is that someone like Eric Rudolph, arrested last year in North Carolina for a 1999 bombing at a Birmingham abortion clinic that killed a guard and maimed a clinic worker, is not charged in state court with assault and murder. Instead Rudolph faces federal charges that he "did maliciously damage, by means of an explosive, a building and property used in an act affecting interstate and foreign commerce," with resulting death and injury. The reason for viewing his actions this way lies not in the nature of his crime but in the politics of abortion.

The federal carjacking statute is another example of how Congress passes legislation in response to the publicity surrounding particular crimes, even when there is nothing about them that makes federal action appropriate. In an especially vicious carjacking that received national media attention in 1992, a Maryland woman was killed after her arm became tangled in her seat belt and the perpetrator drove off, dragging her behind the car. Although local authorities successfully prosecuted the car-jackers, sentencing both the driver and his 17-year-old accomplice to life in prison, Congress felt compelled to pass a law that provides a 15-year minimum sentence for all carjackings involving cars that have moved across state lines at any point. The law, which was passed just a month after the Maryland crime, also mandates a minimum 25-year sentence for any carjacking that results in serious bodily injury and allows the death penalty if anyone is killed.

Federal law criminalizes nearly all robberies and schemes to de-fraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be."

As a result of congressional overreaching, federal courts face overwhelming caseloads. Because of the Speedy Trial Act, which limits the time between arrest and trial for federal offenses, criminal cases take precedence over civil cases. That means federal judges must clear tens of thousands of federal drug and firearms cases, for example, before they can turn to civil cases adjudicating federal questions such as civil rights violations by government officials or constitutional challenges to state laws. In 1990, when the Federal Courts Study Committee released a report documenting the "rapid diversion of resources from civil to criminal cases," U.S. District Judge John Gerry told a Harvard Law School Association gathering the congressional obsession with federalizing crime was making civil access to federal courts a "cruel joke." In 1999 Rehnquist warned Congress that federal courts, particularly in border areas, were experiencing "a crisis in workload created by an unmanageable number of immigration and drug-related cases."

Double Trouble

Civil litigants are not the only ones who suffer. So do criminal defendants. To begin with, federal penalties generally are much harsher than state penalties for the same offense. Many critics have pointed out that disparate punishment by state and federal jurisdictions for the same crime invites abuse of prosecutorial discretion at both state and federal levels. State prosecutors may use the threat of a federal prosecution as a bargaining tool to wrangle a guilty plea. Federal prosecutors may decide to prosecute only those defendants whose convictions will bring political rewards. Federal prosecutors are free to cherry-pick high-profile or politically expedient cases, knowing that the cases they reject probably will be prosecuted in state court.

In a 1997 article in the Southern California Law Review, Cornell law professor Steven D. Clymer describes a case that illustrates the disparity between state and federal prosecutions for the same crime. Two men, Mark Brock Palmer and Jack Roberts, jointly ran a marijuana growing operation in Spokane County, Washington. After their arrest, the federal prosecutor brought charges against Palmer, but not Roberts. Prosecuted in state court, Roberts was sentenced to a fine of $1,000, which was waived because he was indigent. Palmer, meanwhile, was convicted in federal court and sentenced to a 10-year prison term and eight years of supervised release, the most lenient penalty allowed under federal law.

When Rudolph Giuliani was the U.S. attorney for the Southern District of New York in the 1980s, he implemented an anti-drug policy he called "Federal Day." On a different day each week, all drug offenders arrested and charged that day were prosecuted in federal court. Thus a crack cocaine offender arrested on Monday, say, would face a 10-year mandatory minimum sentence, while a crack offender arrested on Tuesday that same week would face perhaps 18 to 20 months of prison time under state law.

Courts consistently have rejected constitutional challenges by defendants complaining of selective prosecution. The federal prosecutor did not have to explain why he chose to prosecute Palmer but not Roberts for essentially the same conduct. Prosecutors enjoy a legal presumption that they exercise their discretion soundly, making their decisions almost entirely unreviewable. Even if the federal prosecutor had chosen to prosecute Palmer but not Roberts because he personally disliked Palmer, there would be no remedy for that abuse of discretion.

Another problem created by duplication of state criminal laws is the possibility of trying defendants twice for the same offense. The U.S. Supreme Court has held that state and federal prosecutions for the same actions do not violate the Eighth Amendment's prohibition of double jeopardy because they involve two different "sovereigns" (the state and federal governments). Yet the principle underlying the Double Jeopardy Clause is that it's unfair to be punished twice for the same offense or to be prosecuted a second time because the government didn't like the result of the first trial. When Congress criminalizes the same actions that states have criminalized, both kinds of abuses can occur, and they are especially likely in high profile, politically charged cases.

After the riots that followed the 1992 acquittal in state court of the four Los Angeles police officers who were charged with beating Rodney King, the first Bush administration decided to prosecute the men in federal court. What had been state assault charges became federal criminal charges of violating King's civil rights, based on a Reconstruction-era law aimed at thwarting Ku Klux Klan attacks on former slaves. The law provides criminal penalties for violations of civil rights by individuals acting "under color of any law" (such as police officers who use excessive force). Although the federal statute was different from the state law under which the four L.A. police officers originally were charged, the essence of the crime remained the same. If the officers were not guilty of the state offenses, they could not be guilty of the federal offenses either. Yet they were convicted the second time around, and each was sentenced to several years in federal prison.

Public outrage also prompted serial prosecutions in the case of Lemrick Nelson, convicted last spring of fatally stabbing Yankel Rosenbaum during the 1991 anti-Jewish riots in Crown Heights, Brooklyn. Originally tried in state court, Nelson was acquitted in 1992 despite overwhelming evidence of his guilt. Five years later he was tried in federal court, technically not for murder but, as in the Rodney King case, for violating Rosenbaum's civil rights -- by stabbing him to death. In addition to actions by public officials, federal civil rights violations can include just about any crime where the victim is chosen "because of his race, color, religion, or national origin." Nelson was charged with attacking Rosenbaum "because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York."

In other words, federal involvement hinged on the crucial fact that Rosenbaum was walking down the street at the time of the attack. This time around Nelson was convicted, but in January 2002 a federal appeals court threw out the conviction on the grounds that the trial judge had biased the outcome by manipulating jury selection. Among other things, the judge invoked the Rodney King case during jury selection to suggest why the case was important -- virtually an invitation for jurors to correct the state verdict. In 2003 Nelson was tried a third time, convicted a second time, and sentenced to 10 years in federal prison (almost all of which he had already served).

In both of these cases, the question is not whether the defendants were guilty. It's whether we want a criminal justice system in which a defendant can be tried again for the same offense if he happens to be acquitted -- or even if he's found guilty, in which case punishing him twice would be perfectly OK according to the Supreme Court. Whether we want such a system or not, that's what we've got.

Deriving Force

One reason it's impossible to get a definitive count of federal offenses is that many are derivative, defined by other criminal acts. Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. Federal prosecutors recently used the PATRIOT Act's money laundering provision against Las Vegas officials accused of taking bribes from a strip club owner. And as illustrated by the indictment of University of Alabama booster Logan Young, derivative crime laws can be used to transform a single offense into several, allowing prosecutors to pile on charges in a way that encourages a guilty plea.

Perhaps the most conspicuous example of a derivative crime law is RICO, the Racketeering Influenced and Corrupt Organizations Act. The most commonly used provisions of RICO make it a crime to conduct or participate in, through a pattern of racketeering activity, the affairs of an enterprise affecting interstate commerce, or to conspire to do the same. The statute defines "a pattern of racketeering activity" as two or more instances within 10 years of "any act or threat" involving a laundry list of crimes defined by state laws or other federal laws.

For instance, two acts of mail fraud within 10 years constitute a pattern of racketeering activity under RICO. Thus, anyone associated with a group of people (an "enterprise" under RICO) that allegedly committed mail fraud ("racketeering activity") could be charged with conspiracy to violate RICO, which carries a 20-year prison sentence. People convicted under RICO can also lose their real and personal property to criminal forfeiture. The government can seize a defendant's assets immediately after indicting him, making it virtually impossible to finance an effective defense.

As the definition of RICO offenses makes clear, any truly wrongful acts covered by the law are already criminalized in other statutes. Not only are RICO violations derivative offenses, but so are many of the underlying crimes the law lists, such as mail fraud and money laundering. RICO adds nothing of substance or value to the federal criminal code, except as a weapon in the hands of investigators and prosecutors.

Derivative crime laws are designed to facilitate convictions, not to protect anyone. Consider the derivative crime of mail fraud, which involves using the mails to perpetrate a fraud. Since almost everyone mails letters, it's easy to satisfy part of the definition and make an indictment stick. If the defendant refuses to plead guilty, the government has to produce only the weakest circumstantial evidence to allow a jury to conclude that the defendant's letter was part of a scheme to defraud someone, and the defendant faces up to 20 years in prison -- and potentially an additional 20 years for a RICO violation.

Most federal criminal laws are derivative because of constitutional constraints on the federal government. For example, Congress has no constitutional authority to make it a crime for one person to defraud another. But it does have the authority to regulate interstate commerce. In 1909, relying on a strained interpretation of that power, Congress passed a law that made it a crime to use the national mail system, even incidentally, to defraud someone.

In the 1916 case Badders v. United States, Supreme Court Justice Oliver Wendell Holmes brushed aside the lack of constitutional authority for this statute, upholding a man's conviction on seven counts of mail fraud (one for each letter) and his sentence of five years' imprisonment per count and a $7,000 fine. Writing for the majority, Holmes reasoned that Congress has the power to regulate (and criminalize) use of the mails even though Congress would have no constitutional authority to criminalize the underlying fraud. "Intent may make an otherwise innocent act criminal," wrote Holmes, "if it is a step in a plot." Citing Supreme Court cases upholding similar laws regulating the use of the mails, Holmes concluded, "Whatever the limits to its power, [Congress] may forbid any such acts done in furtherance of a scheme it regards as contrary to public policy, whether it can forbid the scheme or not."

The Supreme Court's reluctance to question the use of the Commerce Clause as a license to pass criminal laws has created a situation in which Congress has virtually plenary authority to criminalize whatever conduct it chooses. In the 1995 case United States v. Lopez, the Supreme Court ruled for the first time in 60 years that a federal criminal law exceeded Congress' authority under the Commerce Clause. The law in question, the Gun-Free School Zones Act, made it a federal crime to possess a gun in or near a school. But most lower courts have refused to apply that decision in subsequent cases. If the Supreme Court is serious about restoring federalism by imposing meaningful checks on congressional authority, it will have to speak to the issue again, and more forcefully.

Accidental Criminals

In addition to the question of whether Congress has authority to legislate in a given area, there is the issue of whether criminal penalties are appropriate. Consider the case of Christian Hansen and his son Randall, owners and operators of the Georgia-based LCP Chemicals and Plastics. In 2001 the Hansens were convicted of more than 30 environmental violations, including offenses under the Clean Water Act, the Resource Conservation and Recovery Act, the Endangered Species Act, and the Comprehensive Environmental Recovery and Compensation Liability Act. The elder Hansen was sentenced to 10 years in prison, while his son was sentenced to four years. Even though only one employee testified to slipping in contaminated wastewater (but reported no resulting injury), the Hansens were convicted of endangering the health and safety of employees, among many other charges.

Perhaps the most disturbing feature of prosecutions like this one is that federal regulatory statutes such as the Clean Water Act and Endangered Species Act impose criminal liability on the basis of negligence and do not require any culpable intent by the accused. The Supreme Court has determined that certain "public welfare" offenses can trigger criminal sanctions without a showing of criminal intent, recklessness, or even knowledge of the violation. Thus, Congress can impose harsh criminal penalties on business owners and supervisors who have no knowledge of or control over regulatory violations that may occur at their firms.

Environmental regulations, antitrust laws, securities regulations, and a host of other federal laws aimed at nonviolent, nonpredatory behavior the government wants to discourage illustrate how far we have moved from the traditional view of crime as deliberate wrongdoing. Only intentional crimes against people or their property should be subject to criminal penalties. If the Hansens' environmental violations merited sanctions, they should have been civil, not criminal. And if Edward Hanousek, the railroad supervisor mentioned at the beginning of this article, was negligent in overseeing the independent contractor who accidentally spilled oil into a river, whatever harm resulted should have been addressed in a civil proceeding, requiring payment for cleanup or restoration of the waterway.

In recent decades prosecutors increasingly have pursued criminal sanctions against people for behavior that in the past would not have drawn even a fine, much less a prison term. Rudolph Giuliani prosecuted financier Michael Milken for what his own staff called "technical violations" of securities regulations. James Comey, Giuliani's successor as U.S. attorney for the Southern District of New York, charged Martha Stewart, former president of Martha Stewart Living Omnimedia, with "securities fraud" for publicly declaring herself not guilty of a crime the government has not proved she committed. (See "St. Martha," October.) Federal prosecutors receive political benefits not for hard-nosed prosecution of real crimes but for creatively charging high-profile targets. Instead of being reviled for his malicious prosecution of Stewart, Comey recently was promoted to deputy U.S. attorney general, the second-highest post at the Justice Department.

Federal Court Advantage

Once a prosecutor picks his target, he can rely on many features of the federal system that facilitate convictions. In a delightfully (and disturbingly) frank article in the April 1995 issue of the Hastings Law Journal, University of Virginia law professor John C. Jeffries Jr. and U.S. District Court Judge John Gleeson argue that "federal prosecutors can conduct organized crime investigations more quickly, bring more charges, and win more convictions than state and local authorities" due to "features of federal law [that] combine to give federal prosecutors enormous advantages over their state and local counterparts."

In federal court, for example, a defendant can be convicted solely on the basis of uncorroborated testimony by an accomplice (called "statements of interest"), which is something that many states, including New York and California, do not permit. The rationale for such state rules is that an accomplice has little incentive to testify truthfully, especially if he can cut a deal by fingering someone else.

Jeffries and Gleeson also note that a federal grand jury can be called "any time a prosecutor chooses," even without a formal allegation of a crime. "An anonymous tip or rumor may suffice," they write, and an investigation "may be commenced simply to provide assurance that the law has not been violated." A federal grand jury possesses nationwide subpoena power, can hear evi-dence that would be inadmissible at trial, and can return an indictment based entirely on hearsay. "In these and other respects," Jeffries and Gleeson write, "federal grand jury practice is stacked in favor of the prosecution."

Federal sentencing guidelines compel federal judges to give longer sentences than they otherwise might, allowing "downward departures" only in narrowly de-
fined circumstances. "The Sentencing Guidelines empower prosecutors," Jeffries and Gleeson write. "Indeed, if federal prosecutors had been asked to create the sentencing regime that would place the maximum permissible pressure on criminal defendants to cooperate with the government, they could hardly have done better than the Sentencing Commission." Under the guidelines, cooperating with the government is usually the only way for a defendant to substantially reduce his sentence, so "the prosecution holds the key to the jailhouse door."

Although Jeffries and Gleeson focus on organized crime, they note that federal prosecutors can use their advantages in all sorts of cases. "The limits set by the substantive law are so relaxed as to be almost irrelevant," they write. "If, for example, federal prosecutors wanted to stamp out late-night robberies of convenience stores, they would have the authority to try. That such crimes remain the province of state law is not a matter of legislative coercion but of prosecutorial choice."

All three branches of the federal government bear responsibility for allowing prosecutors to wield such sweeping powers. Congress treats criminal statutes as symbolic statements rather than legislation that needs to be justified on constitutional and policy grounds. In their eagerness to condemn the villains of the moment -- polluters, drug dealers, insider traders -- legislators pay little attention to whether the punishment fits the crime or even to whether the behavior they're targeting is properly considered a crime. The executive branch lobbies for new laws and imposes few limits on prosecutorial discretion. Perhaps most disappointingly, the Supreme Court has complacently approved the steady erosion of due process rights, constitutional restrictions on punishment, and state autonomy.

The Court is not likely to revisit the distinction between civil and criminal penalties or impose new limits on punishment under the Eighth Amendment. But it has shown an interest in reviving federalism, and the best hope for shrinking the domain of federal criminal law may be for the Court to follow up on its decision in Lopez with a more forceful statement of the need to distinguish between local and national crimes. Although lower courts have not done much with Lopez, there have been a few promising decisions.

Last year, for example, the U.S. Court of Appeals for the 9th Circuit overturned two convictions -- one for possession of child pornography, the other for possession of homemade machine guns -- on the grounds that the offenses were too remote from interstate commerce to justify federal prosecution. For similar reasons, it also ruled that the Controlled Substances Act "is likely unconstitutional" as applied to medical marijuana users. We can expect to see more such cases if the Supreme Court issues a ruling that establishes clearer limits to congressional authority under the Commerce Clause. But that would mean revisiting decisions on which the legitimacy of the federal government's expansion since the New Deal depends.

In Lopez the Court, quoting an earlier case, worried that an overbroad reading of federal powers threatens to "obliterate the distinction between what is national and what is local and create a completely centralized government." Reversing that process may require bolder action than the Court is willing to take.

The Roots of Racial Profiling

anderwl@prodigy.net (William Anderson) gcallah@erols.com (Gene Callahan) — Wed, 01 Aug 2001 00:00:00 EDT

It is early in the morning, and the well-dressed young African-American man driving his Ford Explorer on I-75 sees the blue lights of the Georgia State Patrol car behind him. The officer pulls behind the sport utility vehicle and the young man's heart begins to sink.

He is on his way to Atlanta for a job interview. The stop, ostensibly for speeding, should not take long, he reasons, as the highway patrol officer walks cautiously toward the Explorer. But instead of simply asking for a driver's license and writing a speeding ticket, the trooper calls for backup. Another trooper soon arrives, his blue lights flashing as well.

The young man is told to leave his vehicle, as the troopers announce their intention to search it. "Hey, where did you get the money for something like this?" one trooper asks mockingly while he starts the process of going through every inch of the Explorer. Soon, an officer pulls off an inside door panel. More dismantling of the vehicle follows. They say they are looking for drugs, but in the end find nothing. After ticketing the driver for speeding, the two officers casually drive off. Sitting in his now-trashed SUV, the young man weeps in his anger and humiliation.

Unmotivated searches like this are daily occurrences on our nation's highways, and blacks and white liberals have been decrying the situation for several years. Many conservatives, on the other hand, dismiss such complaints as the exaggerations of hypersensitive minorities. Or they say that if traffic cops do in fact pull over and search the vehicles of African Americans disproportionately, then such "racial profiling" is an unfortunate but necessary component of modern crime fighting.

The incident described above should give pause to those who think that racial profiling is simply a bogus issue cooked up by black leaders such as Al Sharpton and Jesse Jackson to use as another publicity tool. One of us teaches in an MBA program that enrolls a fairly large number of African Americans, and the story comes from one of our students. Indeed, during class discussions, all of the black men and many of the black women told stories of having their late-model cars pulled over and searched for drugs.

While incidents of racial profiling are widely deplored today, there is little said about the actual root cause of the phenomenon. The standard explanations for racial profiling focus on institutional racism, but that idea runs contrary to the sea change in social attitudes that has taken place over the last four decades. On the contrary, the practice of racial profiling grows from a trio of very tangible sources, all attributable to the War on Drugs, that $37 billion annual effort on the part of local, state, and federal lawmakers and cops to stop the sale and use of "illicit" substances. The sources include the difficulty in policing victimless crimes in general and the resulting need for intrusive police techniques; the greater relevancy of this difficulty given the intensification of the drug war since the 1980s; and the additional incentive that asset forfeiture laws give police forces to seize money and property from suspects. Since the notion of scaling back, let alone stopping, the drug war is too controversial for most politicians to handle, it's hardly surprising that its role in racial profiling should go largely unacknowledged.

The Practice of Racial Profiling

Although there is no single, universally accepted definition of "racial profiling," we're using the term to designate the practice of stopping and inspecting people who are passing through public places -- such as drivers on public highways or pedestrians in airports or urban areas -- where the reason for the stop is a statistical profile of the detainee's race or ethnicity.

The practice of racial profiling has been a prominent topic for the past several years. In his February address to Congress, President George W. Bush reported that he'd asked Attorney General John Ashcroft "to develop specific recommendations to end racial profiling. It's wrong, and we will end it in America." The nomination of former New Jersey Gov. Christine Todd Whitman as head of the Environmental Protection Agency was challenged on the basis of her alleged complicity in racial profiling practices in the Garden State. Whitman had pioneered her own unique form of "minority outreach" when she was photographed frisking a black crime suspect in 1996. Copies of the photo were circulated to senators prior to her confirmation vote. (By the same token, in February 1999, Whitman fired State Police Superintendent Carl A. Williams after he gave a newspaper interview in which he justified racial profiling and linked minority groups to drug trafficking.) More recently, Eleanor Holmes Norton, the District of Columbia's non-voting member of Congress, has tried to introduce legislation that would withhold federal highway dollars from states that have not explicitly banned racial profiling.

Although some observers claim that racial profiling doesn't exist, there is an abundance of stories and statistics that document the practice. One case where law enforcement officers were particularly bold in their declaration of intent involved U.S. Forest Service officers in California's Mendocino National Forest last year. In an attempt to stop marijuana growing, forest rangers were told to question all Hispanics whose cars were stopped, regardless of whether pot was actually found in their vehicles. Tim Crews, the publisher of the Sacramento Valley Mirror, a biweekly newspaper, published a memo he'd gotten from a federal law enforcement officer. The memo told park rangers "to develop probable cause for stop...if a vehicle stop is conducted and no marijuana is located and the vehicle has Hispanics inside, at a minimum we would like all individuals FI'd [field interrogated]." A spokeswoman for Mendocino National Forest called the directive an "unfortunate use of words."

The statistics are equally telling. Consider Crises of the Anti-Drug Effort, 1999, a report by Chad Thevenot of the Criminal Justice Policy Foundation, a group that monitors abuses of the American legal system. Thevenot writes: "76 percent of the motorists stopped along a 50-mile stretch of I-95 by Maryland's Special Traffic Interdiction Force (STIF) were black, according to an Associated Press computer analysis of car searches from January through September 1995....Blacks constitute 25 percent of Maryland's population, and 20 percent of Marylanders with driver's licenses." As this story was being written, New Jersey was holding hearings on racial profiling, and one state police investigator testified that 94 percent of the motorists stopped in one town were minorities.

Minorities are not only more likely to be stopped than whites, but they are also often pressured to allow searches of their vehicles, and they are more likely to allow such searches. In March, The New York Times reported that a 1997 investigation by New Jersey police of their own practices found that "turnpike drivers who agreed to have their cars searched by the state police were overwhelmingly black and Hispanic."

Some commentators, such as John Derbyshire in National Review, have defended racial profiling as nothing more than sensible police technique, where police employ the laws of probability to make the best use of their scarce resources in attacking crime. As Derbyshire put it in his February 19 story, "In Defense of Racial Profiling," the police engage in the practice for reasons of simple efficiency: "A policeman who concentrates a disproportionate amount of his limited time and resources on young black men is going to uncover far more crimes -- and therefore be far more successful in his career -- than one who biases his attention toward, say, middle-aged Asian women."

George Will, in an April 19 Washington Post column, contends that the use of race as a criterion in traffic stops is fine, as long as it is just "one factor among others in estimating criminal suspiciousness." Similarly, Jackson Toby, a professor of sociology at Rutgers, argued in a 1999 Wall Street Journal op-ed that, "If drug traffickers are disproportionately black or Hispanic, the police don't need to be racist to stop many minority motorists; they simply have to be efficient in targeting potential drug traffickers."

Clayton Searle, president of The International Narcotics Interdiction Association, writes in a report, Profiling in Law Enforcement, "Those who purport to be shocked that ethnic groups are overrepresented in the population arrested for drug courier activities must have been in a coma for the last twenty years. The fact is that ethnic groups control the majority of the drug trade in the United States. They also tend to hire as their underlings and couriers others of their same group." (Searle's report is available at www.inia.org/whats-new.htm#Profiling.)

Case Probability vs. Class Probability

The stories and statistics that draw outrage tend to share two common elements: They involve a search for drugs and the prospect of asset forfeiture. These types of investigations have led police from the solid ground of "case probability" to the shifting sands of "class probability" in their quest for probable cause. Once police are operating on the basis of class probability, there is a strong claim that certain groups of people are being denied equal protection under the law.

Case probability describes situations where we comprehend some factors relevant to a particular event, but not all such factors. It is used when a doctor tells a patient, "Given your lifestyle, you'll probably be dead in five years." Class probability refers to situations where we know enough about a class of events to describe it using statistics, but nothing about a particular event other than the fact that it belongs to the class in question. Class probability is being used when an insurance company estimates that a man who is 40 today will probably live to be, on average, about 80. The insurance company is not making any statement about the particular circumstances of any particular man, but merely generalizing about the class of 40-year-old men.

This distinction helps us to differentiate two ways of using information about race or ethnicity in a police investigation. As an example of the first type, employing case probability, consider a mugging victim who has told the police that her mugger was a young Asian man. Here, it is quite understandable that the group of suspects investigated will not "look like America." There is no sense in forcing the police to drag in proportional numbers of whites, blacks, women, and so on, proving that they have interrogated a representative population sample of their city, before they can arrest an Asian fellow. No, their investigation should clearly focus on young Asian men.

It's not at all impossible that a prevalence of some type of criminal activity in some ethnic group will lead to many investigations that focus on members of that group. As long as this is based on evidence gathered from particular crimes, there is nothing untoward here. If it turns out, for instance, that Bulgarians are especially numerous among purse-snatchers in some city, then a summary of police interrogations might discover evidence of "Bulgarian profiling" in the investigation of purse-snatching. But this may be a statistical mirage if it turns out that no one in the police force set out to focus on Bulgarians as potential purse-snatchers. The emergent result is an unintended outcome of policemen following an entirely valid principle of crime investigation: Concentrate on suspects who fit the description you have of the suspect.

But when we turn our attention to the type of racial profiling that occurred on the highways of Maryland and New Jersey, or that is described in the Forest Service memo, we find a very different phenomenon, one where investigations proceeded on the basis of class probability. Here, before having evidence of a particular crime, police set out intending to investigate a high proportion of people of some particular race, ethnic group, age group, or so on. Their only justification is that by doing so, they increase their chances of discovering some crimes.

Additionally, there is a fundamental difference between the type of crime, such as the mugging example above, that is usually investigated by gathering evidence about a known crime, and narrowing the search based on such evidence, and the type investigated by looking in as many places as possible to see if one can find a crime. The first type of crime generally has a victim, and the police are aware of a specific crime that has been committed. The crime is brought to the attention of the police by a complainant, even if the complainant is a corpse.

George Will, in his defense of current police practice, points out: "Police have intelligence that in the Northeast drug-shipping corridor many traffickers are Jamaicans favoring Nissan Pathfinders." This is quite a different situation than having intelligence that a particular Jamaican robbed a store and escaped in a Pathfinder. If you are a law-abiding Jamaican who by chance owns a Pathfinder, you frequently will find yourself under police surveillance, even though the police have no evidence about any particular crime involving any particular Jamaican in a Pathfinder.

We could not have any effective law enforcement without allowing some scope for case probability. If your twin brother robs a bank in your hometown, it does not seem to be a civil rights issue if the police stop you on the street for questioning. When the police discover their mistake, they should apologize and make you whole for any damages you have suffered. Such an event, while unfortunate, is simply a byproduct of attempting to enforce laws in a world of error-prone human beings possessing less-than-perfect knowledge. It will be a rare event in law-abiding citizens' lives, and it is highly unlikely that such people will come to feel that they are being targeted.

However, the use of class probability in police investigations is correctly regarded with extreme suspicion, as it violates a basic principle of justice: The legal system should treat all citizens equally, until there is specific, credible evidence that they have committed a crime. In the cases we've been discussing, we can say that the odds that any particular young black or Hispanic man will be hassled by the police are much higher than for a white man who, aside from his race, is demographically indistinguishable from him. These minority men, no matter how law-abiding they are, know that they will be investigated by the police significantly more often than other citizens who are not members of their racial group. The social cost of the alienation produced by this situation cannot, of course, be measured, but common sense tells us that it must be great.

As important, in the majority of "crimes" that such stops discover, there is no third party whose rights have been violated, who can step forward and bring the crime to the attention of the police. To discover victimless crimes, investigators must become intrusive and simply poke around wherever they can, trying to see if they can uncover such a crime. When someone drives a few pounds of marijuana up I-95 from seller to buyer, who will come forward and complain? It's not merely that, as in the cases of robbery or murder, the perpetrator may try to hide his identity, but that the "crime" has no victim.

Drug War Profiling Practices

Both statistical studies and anecdotal evidence support the view that drug crimes are the almost exclusive focus of investigation in racial profiling cases. Hence, The New York Times reported in February that, "The New Jersey State Police said last week that the number of drug arrests on the Garden State Parkway and the New Jersey Turnpike fell last year, after the department came under scrutiny for racial profiling. The number of drug charges resulting from stops on the turnpike were 370 last year, compared with 494 drug charges in 1999. There were 1,269 charges filed in 1998. On the parkway, troopers reported 350 drug charges last year compared with 783 in 1999 and 1,279 in 1998."

The Record, a Bergen, New Jersey, newspaper, obtained state police documents last fall. One document, used for training, teaches troopers to zero in on minorities when scanning state roadways for possible drug traffickers. Titled "Occupant Identifiers for a Possible Drug Courier," the document instructs troopers to look out for "Colombian males, Hispanic males, Hispanic and a black male together, Hispanic male and female posing as a couple." (One's mind boggles at how the police are able to detect that two Hispanics are "posing" as a couple as they zip by at 60 miles per hour.) The undated document also teaches troopers how to use supposed traffic violations, such as "speeding" and "failure to drive within a single lane," as a pretext to pull over suspected drug couriers.

If police have a goal of maximizing drug arrests, they may indeed find that they can achieve this most easily by focusing on minorities. Blacks on I-95 in Maryland, for instance, had a significantly higher initial propensity to carry drugs in the car than did whites. "Racial Bias in Motor Vehicle Searches: Theory and Evidence," a 1999 study by University of Pennsylvania professors John Knowles, Nicola Persico, and Petra Todd, shows that despite the fact that blacks were stopped three-and-a-half times more than whites, they were as likely to be carrying drugs. But this doesn't mean their propensity to carry is the same. If we assume that the high likelihood of being stopped reduces some blacks' willingness to carry drugs, then if not for the stops, they would have been carrying proportionally much more than whites. The Penn professors conclude they are displaying what they call "statistical discrimination" (i.e., the police are operating on the basis of class probability) rather than racial prejudice. Perhaps more to the point, they conclude that the police are primarily motivated by a desire to maximize drug arrests.

Some racial profiling defenders agree that the drug war bears a large part of the blame for racial profiling. "Many of the stop-and-search cases that brought this matter into the headlines were part of the so-called war on drugs," writes Derbyshire. "The police procedures behind them were ratified by court decisions of the 1980s, themselves mostly responding to the rising tide of illegal narcotics." But Derbyshire dismisses the argument that racial profiling is chiefly a byproduct of the drug war. He contends that even if drugs were legalized tomorrow, the practice would continue.

He is confusing the two forms of police procedure we have outlined above. The practice of laying out broad dragnets to see what turns up would almost entirely disappear but for the attempt to stamp out drug trafficking and use. Derbyshire, to bolster his case, cites the fact that in 1997, "Blacks, who are 13 percent of the U.S. population, comprised 35 percent of those arrested for embezzlement." This statistic would be useful if he were defending the fact that 35 percent of those investigated for embezzling that year were black. But does Derbyshire believe that stopping random blacks on an interstate highway is catching very many embezzlers? Or that, absent the drug war, cops would start searching cars they pull over for embezzled funds?

How Asset Forfeiture Fuels Profiling

In the 1980s, state legislatures and Congress were frustrated with their inability to arrest and convict "drug kingpins." So they passed laws that gave police the power to seize the property of suspected dealers. The dubious rationale: The "pushers'" property had been purchased through ill-gotten gains and hence didn't rightly belong to them. (Questions about establishing actual guilt were brushed aside as counterproductive.) The federal Comprehensive Crime Act of 1984 was the most important of these measures, as it allowed local police agencies that cooperated in a drug investigation to keep the vast majority of the assets seized.

In addition, the Department of Justice decided that police in states that did not allow their agencies to keep asset forfeiture proceeds could have the feds "adopt" their seizures. The Kansas City Star's Karen Dillon has done extensive investigative reporting on asset forfeiture over the past three years. She writes: "Wisconsin law mandates that forfeiture money goes to public schools, but only $16,906 went into Wisconsin's education fund during the year ending in June 1999, according to the state treasury department. During just six months of the same period, local law enforcement gave the federal government $1.5 million in seizures."

In a paper published in the September 2000 issue of the economics journal Public Choice, "Entrepreneurial Police and Drug Enforcement Policy," Brent D. Mast, Bruce L. Benson, and David W. Rasmussen report that forfeiture receipts roughly doubled every year for several years after the passage of the Comprehensive Crime Act. According to the Sourcebook of Criminal Justice Statistics, the total value of Drug Enforcement Administration seizures reached nearly $1 billion in 1992. A large amount of that revenue flows back from the federal government to state and local police departments. Dillon notes: "In 1997 and 1998, the St. Louis Metropolitan Police Department received back more than $2.5 million. In 1998 alone, the Georgia Bureau of Investigation took back $1.7 million."

A letter to the International Narcotics Interdiction Association (INIA) from the Richmond Metro Interdiction Unit, posted on INIA's Web site, is accompanied by a photo of two cops in front of a pile of $298,440. The letter says: "We took this money off a guy coming from NY to Miami on Amtrak about two weeks after returning from SKY NARC [an INIA training session] in Anaheim. It was a great school and as you can see it paid off."

The U.S. Department of Justice reports: "Collectively, local police departments received $490 million worth of cash, goods, and property from drug asset forfeiture programs during fiscal 1997. Sheriffs' departments had total receipts of $158 million."

This kind of money adds a major incentive to police efforts to discover drug crimes. The study by Mast, Benson, and Rasmussen concludes: "The results for the impact of asset seizure laws are robust....Police focus relatively more effort on drug control when they can enhance their budgets by retaining seized assets. Legislation permitting police to keep a portion of seized assets raises drug arrests as a portion of total arrests by about 20 percent and drug arrest rates by about 18 percent."

Of course, if the police begin harassing all motorists in a particular locale, support for their activities will soon evaporate. However, if they can identify a minority group that is somewhat more likely to commit a particular drug crime -- and if they know that members of that group are not politically powerful -- then the police can focus on those people in order to enhance their departmental revenue.

The usual supposition, that the accused is innocent until proven guilty, has been explicitly reversed in asset forfeiture cases. The authorities are not required to prove that a crime, involving the goods in question, has been committed. Instead, they must merely have "probable cause" for the seizure; the burden of proof is on the defendant trying to recover his property. The Schaffer Library of Drug Policy (druglibrary.org/schaffer) has found that 80 percent of those who have had assets seized are never charged with a crime, let alone convicted of one. Federal law provides for up to five years in prison for attempting to prevent one's own property from being grabbed.

It did not take long for those in law enforcement to conclude that their best haul would come from seizing goods from citizens who lack the resources to win them back. In one highly publicized case that occurred in 1991, federal authorities at the Nashville airport took more than $9,000 in cash from Willie Jones, a black landscaper who was flying to Houston in order to purchase shrubs. According to the police, that money could have been used to purchase drugs. After spending thousands of dollars and two years on the case, the landscaper was able to convince the courts to return most of the seized cash.

Sam Thach, a Vietnamese immigrant, found himself in a similar situation last year. He was relieved of $147,000 by the DEA while traveling on Amtrak. Thach was investigated because the details of his ticket purchase, which Amtrak shared with the DEA, "fit the profile" of a drug courier. He was not charged with any crime and is now fighting to retrieve his money in federal court. (See "Railway Bandits," Citings, July.)

When the University of Pennsylvania study and the study by Mast, Benson, and Rasmussen are considered in tandem, the implication is clear. The possibility of rich pickings through asset forfeiture, combined with the higher propensity for black motorists to carry drugs, provides police departments with a tremendous incentive to engage in racial profiling. It is hardly surprising, then, that police take the bait, even at the cost of racial bias accusations and investigations.

Last year, in reaction to high-profile cases of abuse, Congress passed legislation that changed the standard in federal civil asset forfeiture cases. Rather than showing "probable cause" that property was connected to a crime, the feds must now demonstrate "by a preponderance of the evidence" that the property was used in or is the product of a crime, a significantly higher legal standard. The revised law also awards legal fees to defendants who successfully challenge property seizures and gives judges more latitude to return seized property. Exactly what effect the law will have on federal agents, or on state and local cops, is not yet clear.

This Is Your Law Enforcement on Drugs

In the panic created by the drug war, our traditional liberties have been eroded. Rather than regarding case probability as a necessary component of probable cause for searches or seizures, the American law enforcement system has now come to accept class probability as sufficient justification for many intrusions.

Unfortunately, the current protests against racial profiling are not addressing the root causes of the practice. Politicians, eager to please voters, have created potentially greater problems by trying to suppress the symptoms. As John Derbyshire points out, the laws rushed onto the books to end racial profiling result in severe obstacles to police officers attempting to investigate serious crimes. He notes, "In Philadelphia, a federal court order now requires police to fill out both sides of an 8-1/2-by-11 sheet on every citizen contact." Unless our solution to this problem addresses its cause, we will be faced with the choice of either hindering important police work or treating some of our citizens, based on characteristics (race, age, and so on) completely beyond their control, in a manner that is patently unfair.

If we really wish to end the scourge of racial profiling, we must address its roots: drug laws that encourage police to consider members of broad groups as probable criminals. We must redirect law enforcement toward solving specific, known crimes using the particular evidence available to them about that crime. Whatever one's opinion on drug legalization may be, it's easy to agree that the state of seizure law in America is reprehensible, even given last year's minor federal reforms. It should be obvious that there's something nutty about a legal system that assumes suspects in murder, robbery, and rape cases are innocent until a trial proves otherwise, but assumes that a landscaper carrying some cash is guilty of drug trafficking.

Drugs, prohibitionists commonly point out, can damage a user's mind. They apparently can have the same effect on the minds of law enforcement officials.