Reason Magazine - Topics > Civil Liberties

One Flew Over the Lone Star State

jwalker@reason.com (Jesse Walker) — Wed, 07 May 2008 12:19:00 EDT

The Dallas Morning News runs a blistering exposé of Texas' state psychiatric institutions:

Patients with severe mental illness are committed to Texas' state psychiatric hospitals to be protected from themselves. Instead, some are suffering vicious abuse from the very caregivers hired to look after them.

Last year, one state mental hospital employee tackled an adolescent patient who was sobbing for his mother, dragging him across the floor by his wrists and hair.

The year before, another brought a female patient into a hospital bathroom and sexually abused her....

State officials say there will always be some reports of abuse and neglect in an institutional setting. And they say they take any allegations of mistreatment seriously. But the records show that as in other state-run facilities, abuse and neglect are systemic.

Naturally, the system's supporters believe the problems can be solved with more money:

The state psychiatric hospitals, like other systems for vulnerable Texans, are chronically starved for cash, advocates of more state funding say, and services at the local level can't keep up.

"You get what you pay for," said Rep. Garnet Coleman, D-Houston, who has bipolar disorder. "When you financially dumb something down, you make services cheap, something's got to give. Unfortunately, it usually ends up being a mentally ill or disabled Texan."

Before we go any further, I'd like to pause to savor the phrase "Rep. Garnet Coleman, D-Houston, who has bipolar disorder." In a better world, the AP styleguide would require reporters to identify all elected officials with a party affiliation, a district or state, and a psychiatric diagnosis.

Now I'll turn the microphone over to Charles Johnson -- the Rad Geek guy, not the Little Green Footballs guy -- to argue that it might not be a good idea to give abusive institutions more resources:

no matter how bad and how widespread the abuse may get, the administrators can always count on the pro-establishment wing of their supposed critics to go to the public and to the legislature to beg for even more tax money and even more prison guards to be sent into the psychiatric prison system, so that the very people who created these maddening prison-ward hellholes can be rewarded for their institutionalized violence by being allowed to take even more money from taxpayers to go on doing the same old thing...

What is really needed is a power change, so that psychiatric wards are no longer artificially packed by court order, so that patients can leave and seek help through other means if conditions become unbearable, and so that supposed patients are no longer "treated" against their will and held down at the mercy of their helper-captors. If you make a hospital into a prison camp, then it should be no surprise when the hospital "caregivers" start acting like prison camp guards.

Now Playing at Reason.tv: Bob Barr on Why He Wants To Be President

Tue, 29 Apr 2008 07:00:00 EDT

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First They Came for the Toddlers...

jwalker@reason.com (Jesse Walker) — Thu, 24 Apr 2008 11:25:00 EDT

The FLDS raid in Texas looks more ludicrous every day. Writing in the Dallas Morning News, Scott Henson takes aim at Judge Barbara Walther:

Excuse me, Judge? You issued a sweeping, house-to-house search warrant based on a highly questionable anonymous call that turned out to be phony. You refused to allow individual hearings for children, grouping them together like cattle. You accepted the testimony of an expert on "cults" who only learned about FLDS from media accounts, rather than an academic who'd studied them professionally for 18 years.

You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

From the evidence presented publicly, I do not believe that the children have been sexually abused or physically harmed. Allegations of forcible rape turned out to be bogus, and only five girls 16 to 19 years old were found pregnant or with children -- probably about the same ratio you'd find if you rounded up all the kids in my neighborhood....

In Eldorado, no one alleges YFZ parents are themselves abusing children. Instead the allegation (in court, at least) is that they're teaching their kids that a woman's highest calling is giving birth and raising children and that it's acceptable to get married at an early age. Even if it were true, and the allegation was disputed, can this really be enough to seize children from their homes?

Hanson has been covering the case heavily on his excellent blog. Also invaluable: The Polygamy Files, a blog by Brooke Adams of The Salt Lake Tribune, who has been on the fundamentalist Mormon beat for years. One piece of good news: Judge Walther has reversed her decision to separate FLDS mothers from children less than 12 months old.

And yes, it may turn out that there was some genuine sexual abuse in that community. If so, it should be punished. But even then, the approach the government has taken would be deeply harmful overkill, for reasons expressed pithily by Les Jones:

Imagine that some parents in a school district were accused of child abuse. Now imagine that the authorities took every child from the elementary, junior high, and high school away from their parents and put them in foster care. That's a rough analogy of what's happening in Texas.

The difference, I guess, is that the FLDS parents belong to a "cult." And once you've applied that label, it's just a quick step to assuming they do everything en masse.

Akron, Too

rbalko@reason.com (Radley Balko) — Mon, 21 Apr 2008 15:27:00 EDT

In Memphis this week, it was a "terrorism sweep" that failed to catch any terrorists. In Akron, police embarked on a citywide "gun sweep" that didn't turn up any guns.

But like the authorities in Memphis, they did find plenty of other ways to stay busy:

Authorities arrested 72 people in the third night of a Gun Violence Reduction Sweep on Friday night and Saturday morning, Akron police Lt. Rick Edwards said.
Edwards said 115 charges were filed. Of those charges, five were felonies, 35 were misdemeanors and 75 warranted arrests for people with outstanding warrants, Edwards said. Of the warranted arrests, seven were felonies and 68 were misdemeanors.
Authorities also issued 88 traffic citations, including four for operating a vehicle under the influence.
During the sweep, authorities also conducted bar checks at the Bank Lounge at 1078 Kenmore Blvd., where patrons were arrested on drug charges, and at the Boulevard Lounge at 995 Kenmore Blvd., where liquor violations were issued against the liquor permit holder and several patrons were charged with drug offenses, Edwards said.
During the citywide sweep, officers confiscated 5.2 grams of crack cocaine, one-tenth of a gram of powdered cocaine, 13.1 grams of marijuana, 9 Oxycodone pills and 19 Percocet pills, Edwards said.
No guns were confiscated during the Friday-Saturday action, Edwards said.

These allegedly-regulatory "alcohol inspections" of bars that include searching patrons for drugs are becoming increasingly common.

Now Playing in Memphis: Martial Law Lite!

rbalko@reason.com (Radley Balko) — Mon, 21 Apr 2008 14:13:00 EDT

Last week, federal, state, and local police in Tennessee, Mississippi, and Arkansas conducted a massive sweep dubbed "Operation Sudden Impact."

The operation included raids of businesses, homes, and boats; traffic roadblocks; and personal searches. They say they were looking for "terrorists." If they found any, they haven't announced it yet. They did arrest 332 people, 142 of whom they describe as "fugitives." They also issued about 1,300 traffic tickets, and according to one media account, seized "hundreds" of dollars.

From the Memphis Commercial Appeal:

While the operation was billed as a regional "anti-terrorism initiative," the scope was also broad -- everything from the serving of fugitive warrants to spot checks of boats on the Mississippi River to ensuring drivers in Tipton County had their children properly fastened into child safety seats.
"Not all of this initiative is to arrest people," said Deputy Chief Donna Turner of the Tipton County Sheriff's Department.
Many agencies put an emphasis on traffic stops. A little after 8 p.m. Saturday in Hickory Hill, Sgt. Chris Harris of the Shelby County Sheriff's Office street crimes unit stopped a white SUV that was booming with music. The driver was driving on a suspended license -- he received a citation -- and there was marijuana residue in the car, but "not enough to weigh out," Harris said.
Still, every traffic stop holds the potential of netting much more than expected.

Nashville's News Channel 5 reports agents seizing equipment from local businesses:

The FBI along with hundreds of officers said they are looking for anything out of the ordinary. Agents take computers and paperwork from businesses.
One store owner said he was told the agents were looking for stolen electronics. While some business owners feel they are being targeted, law-enforcement officers said they are just trying to track down possible terrorists before something big happens.
"What we have found traditionally is that terrorists are involved in a number of lesser known type crimes," said Mark Luttrell, Shelby County sheriff.

What's really unfortunate is the complete lack of inquisitiveness in the local media. How many of these raids were backed by search warrants? What justification did police give for the traffic roadblocks and traffic stops? Random stops and roadblocks are only legal under limited circumstances. Fishing expeditions aren't one of them, though fishing expeditions disguised as DWI checkpoints usually are.

Little Brother Is Watching

jwalker@reason.com (Jesse Walker) — Wed, 16 Apr 2008 20:00:00 EDT

Guilty Before Proven Innocent

rbalko@reason.com (Radley Balko) — Mon, 14 Apr 2008 12:00:00 EDT

Ann Colomb scoops a plastic cup of corn from a white pail in her backyard and pours it onto the sod at her feet. A few dozen scraggly chickens scatter as the corn hits the ground, then gather back into a flock to peck up the kernels.

“Grocery chickens are so expensive,” the 57-year-old Colomb explains. “And they’re pumped up with all those hormones. So we raise and butcher them ourselves.” Inside, a less lucky bird stews with gravy and spices in a pot on Colomb’s stove. As she frequently does, Colomb is entertaining guests. She’ll ladle the chicken and gravy over rice for visiting family members, along with a selection of the peppery, butter-laden sides—a mix of Creole cuisine and soul food.

It’s early July in Church Point, Louisiana, and the summer’s bearing down. In front of the Colombs’ modest, two-bedroom bungalow, a large rattletrap fan blows sluggish swamp air across the porch. An unused freezer, an old toaster oven, and a rickety covered swing sit under the driveway carport. Colomb’s husband, James, sits on a lawn chair and dabs the humidity from his face with a handkerchief.

The Colombs live on a mostly black street in a mostly white section of this mostly segregated town of 4,700 in Acadia Parish—the heart of Cajun country. James Colomb spent the bulk of his career working in an oil field, then was injured. The family’s sole source of income now is his disability check. Ann Colomb—“Miss Ann” to those who know her—is a homemaker.

It was from this unlikely setting, the United States alleged, that Ann Colomb and three of her four sons ran one of the largest crack cocaine operations in Louisiana. Over the course of a decade, prosecutors said, the Colombs bought $15 million in illicit drugs with a street value of more than $70 million. Judging solely from the indictments, the government’s case seemed formidable: a trail of police reports throughout the 1990s accusing the Colomb boys of possessing or selling drugs; a 2001 raid on the Colomb home that turned up 72 grams of crack, a Titan .25-caliber pistol, and a rifle; and more than 30 prison informants who were prepared to testify that they had sold crack to one or more members of the Colomb family. In 2006 a jury in Lafayette, Louisiana, convicted the African-American family on federal drug conspiracy charges. Ann and her sons served almost four months in a federal prison while awaiting their sentences, which would likely have ranged from 10 years to life.

But in the ensuing months, the government’s case unraveled, exposing some unsettling truths about the way jailhouse informants are used in America’s courtrooms. In December 2006, all charges against the family were dismissed. The federal judge who presided over the trial was so upset about what happened in his courtroom that he has since taken the rare step of speaking out about it publicly.

The legal fiasco was partly attributable to familiar themes of racism and overly aggressive prosecution. But the Colomb story is mostly about the war on drugs. It shows how the absurd incentives created by the unaccountable use of shady drug informants by police and prosecutors can quickly make innocent people look very guilty.

The case loomed over the family for more than five years. It wrecked their finances. The Colombs’ son Danny was convicted shortly after learning that his wife Elizabeth was expecting their first child. He spiraled into severe depression while incarcerated. He and Elizabeth say they spent their entire savings on attorney’s fees. Ann Colomb had a serious diabetic attack in prison. She too spent her savings on her defense.

Still, the Colombs’ home on Broadway Street is a happier place now, bustling with visiting neighbors and relatives. Ann forges a path through the doddering chickens and makes her way to the front of the house. She sits down in a lawn chair next to her husband and lifts her 3-year-old granddaughter Mariah into her lap. “It’s good now,” she says as she strokes the little girl’s braids. “I’m finally getting to enjoy my grandbabies.”

Ten Years, Four Incidents, One Conviction
Ann Colomb and three of her four sons were indicted, charged, and convicted on federal drug conspiracy charges. The conspiracy indictment allowed the government to piece together a series of disparate events going back more than a decade, only one of which had ever amounted to a conviction in state court.

The indictment lists four “overt acts” over 10 years that prosecutors say indicate a conspiracy. The cumulative amount of cocaine police said was involved in the four incidents amounts to less than a gram. All four incidents also involved deputies from the Acadia Parish Sheriff’s Department, whom the Colombs accuse of harboring a racially motivated grudge against the family, driven in part by the Colomb boys’ history of dating white women. (The Sheriff’s Department declined to comment for this story.)

The only act listed in the federal indictment that resulted in a conviction at the time came in 1993, when a sheriff’s deputy pulled over a car occupied by Ann Colomb’s son from a previous marriage, Sammie Davis Jr., who was 26 at the time; Ann and James Colomb’s son Edward Colomb, then 20; and two other men. A subsequent search found cocaine and marijuana on the other two men and some residue in the car but none on Davis or Colomb. Sammie and Edward were nevertheless arrested and charged with drug possession. Ann and James Colomb say their attorney told Sammie and Edward that if they fought the charges, they would almost certainly be convicted and sent to prison. The two pleaded no contest to a felony possession charge and were sentenced to probation.

“We didn’t know anything about how all of this worked,” Ann Colomb says. “We’d never been in a court before. I didn’t know the first thing about drugs or the law.” The repercussions of that plea would hang over the family for 15 years.

In the other three incidents federal prosecutors claimed were part of the drug conspiracy, state charges were dropped before getting to trial. In one, an undercover police officer alleged that in December 1999 he met Sammie Davis Jr. under the Colomb home’s carport to purchase cocaine. Years later, at the federal trial, the man who built the carport testified that it had not existed in December 1999. It wouldn’t be built for another year.

An assistant to Acadia Parish Sheriff Wayne Melancon referred inquiries to Jerry Stutes, a federal investigator who worked for the U.S. Attorney’s Office for the Western District of Louisiana in the federal case against the Colombs. (Stutes has also worked for the Acadia Parish Sheriff’s Department.) Stutes declined to comment, referring inquiries to the Public Information Office of the Drug Enforcement Administration’s New Orleans field office. That office referred inquiries to the U.S. Attorney’s Office, which did not respond to multiple requests for an interview.

A Divided Town
In 1981 Ann and James Colomb moved their family to Church Point from nearby Carencro, Louisiana.

The family included Sammie Davis Jr. (named for the Rat Pack crooner), now 40, and the four children the couple had together: Edward, now 34; Danny, 33; Randy, 32; and Jennifer, 27. Because Ann and her first husband didn’t finalize their divorce until years after their separation, the surnames of the children can be confusing: Although only Sammie was the product of Ann’s previous marriage, both he and Danny take the last name Davis, while Edward and Randy take the last name Colomb. Jennifer, now married, takes the last name of her husband, Timothy Price.

Church Point has a history of racial unrest. Even today, black residents say, much of the town is segregated, by custom and practice if not by law. There are two versions of Church Point’s annual Mardi Gras parade, one for whites and one for blacks. (Church Point Mayor Roger Boudreaux insists that “anyone is free to take part in either the white or black parade.”) There are separate white and black Catholic churches, cemeteries, and, for the most part, neighborhoods. Blacks in Church Point say they aren’t permitted at the town’s only swimming pool. Mayor Boudreaux says the only pool in town requires a private membership but couldn’t say if there were any black members.

In 1994 fighting broke out in the stands of a Church Point High School football game when Margeaux Coleman was announced as the school’s first black homecoming queen. Coleman at the time was dating Randy Colomb, Ann’s fourth son. Months later, former Ku Klux Klan leader and white supremacist David Duke took part in the town’s white Mardi Gras parade. Black Church Point residents say town officials invited Duke in direct response to the homecoming scandal. Boudreaux says Duke showed up on his own initiative.

Rodney and Lois Carrier grew up in Church Point but today live in Carencro. The Carriers, both white, say they not only witnessed Church Point’s racial bias over the years; they participated in it.

“It’s still a different time in Church Point,” Lois Carrier says. She’s sitting in front of her kitchen window, where, sitting on the sill, there is a collection of black minstrel figurines. “There are still a lot of people there who don’t accept blacks into their homes,” she says. “Black people and white people live in different parts of town. Walk on different sides of the street. We were like that too. I’m ashamed of it now. But yes, we were racist people.”

All of that changed in 1997, the Carriers say, when their daughter Elizabeth began dating a black man—Ann Colomb’s son, Danny. “We weren’t happy when we heard Elizabeth was dating a black guy,” Rodney says. “We didn’t even want to meet him.”

In fact, it took months for the Carriers to agree to meet Danny. “But once we did, we fell in love with him,” Lois says. Danny obtained his Catholic confirmation, and began attending Bible study at the Carriers’ church. “Danny healed us from our prejudiced way of thinking,” Lois Carrier says. “We could finally see past his color, to his heart.” Rodney Carrier’s eyes well up when he speaks of Danny. “Today, I wouldn’t want anyone but Danny for Elizabeth,” he says.

What Danny and his family went through in court also changed the Carriers’ way of thinking. “We were raised to trust the authorities, to have a certain fear of them,” Lois says. “Now, it’s like we’ve lost a lot of that trust. It’s almost a scary feeling, not to be able to trust the people you’re supposed to. What that family went through.…And watching them do Danny the way they did.…”

Elizabeth Carrier says she regularly did battle with Acadia sheriff’s deputies in the late 1990s. “I was pulled over all the time,” she says. “Whenever I left Ann’s house, they’d ask ‘What are you doing with those Colomb boys?’ or ‘Why are you here?’ ” She says the police also would ask her whom she was dating and, when she told them, ask to search her car for drugs. Eventually, she says, she stopped going to the Colombs and instead asked Danny to visit her house.

Brandy Hanks, 30, is a white woman who dated Danny Davis during and shortly after high school. “I was pulled over just about every time I left Miss Ann’s house,” Hanks says. “They’d ask me, ‘Why are you hanging out with those niggers, those drug dealers?’ Or they’d ask, ‘What’s someone like you doing over at the Colomb house?’ And they’d always ask who I was dating.”

It wasn’t just law enforcement. Hanks says the Ku Klux Klan once left a card on her windshield with threats about interracial dating. “People don’t know what it was like—what we went through,” Ann Colomb says. “You don’t know what it’s like to get a phone call in the middle of the night from somebody, saying if my boy Edward don’t stop dating white girls, I’m going to find him hanging from a tree.”

Colomb wipes a tear into her cheek, then grows defiant. “I told him to leave a branch open for me, because if he killed my boy, I was going to string his white ass up right alongside,” she says. “Then I disconnected our phone.”

By the mid 1990s, the Colomb boys say they were regularly getting pulled over. “We couldn’t drive anywhere in town without getting stopped,” says Edward. “They would pull you over, ask to search your car, make a big deal out of it. Sometimes they’d let you go, sometimes they’d take you in and try to get you to plead to something you didn’t do.”

“I’ve battled depression for 15 years because of all this,” Danny says. “I couldn’t leave my house without getting harassed. I still take Lexapro and blood pressure medication. I don’t think I was paranoid when I thought they were going to kill me. I had police try to run me off the road. Other times, it was petty stuff, just to mess with you. One deputy pulled me over and took my license from me for no reason. He never gave it back.”

In February 1996, local authorities claim to have witnessed Danny Davis participate in a hand-to-hand drug deal in a Church Point parking lot. That evening, a police team clad in camouflage, black ski masks, and full SWAT attire stormed the home of Brandy Hanks’ parents, where Danny and Brandy were staying. The police broke the family’s door open with a battering ram just as Hanks’ partially paralyzed mother approached to open it. She was thrown over the back of her couch, triggering a cardiac event that put her in the hospital. The police roused Danny from sleep at gunpoint, handcuffed him, and marched him outside the house, where newspaper photographers and television crews waited with cameras to capture the fallen football star in shackles.

“They pointed their guns at a two-week-old baby,” Hanks says. “My little sister was so scared she peed herself.”

The police found no drugs, weapons, or anything incriminating in the raid. But Danny Davis says they still attempted to get him to plead to a drug charge for a transaction he says never happened. He refused and was never charged. Davis would be hauled into the police station two more times and pressured by local authorities to plead guilty. He refused both times, and both times the charges were dropped.

It was from these multiple run-ins with local authorities throughout the 1990s that the U.S. Attorney’s Office plucked the four incidents included in the federal conspiracy indictment against the family. These incidents—plus a questionable sting on Ann Colomb’s house in October 2001 that turned up two guns and 72 grams of crack—were the only evidence presented by Assistant U.S. Attorney Brett Grayson that the Colomb family ever sold any illicit drugs. The rest of the testimony came from jailhouse informants accusing the Colombs only of buying cocaine, and lots of it.

“They took a bunch of unrelated police harassments of these people over 10 years, coupled it with a parade of jailhouse snitches, and called it a conspiracy,” says Rodney Baum, Sammie’s lawyer. “It was ridiculous.”

The Raid
On October 22, 2001, a local drug task force claimed to have conducted a “controlled buy” of crack cocaine from Ann Colomb. According to police reports, Stevie Charlot, a local crack addict who once toured the world as drummer for a zydeco band, was recruited to conduct the buy. Although police say Charlot wore a wire to record the transaction, they didn’t preserve any recording of it.

In the years between the alleged buy in 2001 and the Colomb trial in 2006, Charlot changed his story several times. In 2002 he told a private investigator hired by Colomb’s defense lawyers (in a recorded conversation) that the buy never happened at all, that he’d made the entire thing up to appease law enforcement officials. Charlot himself was facing a host of drug charges at the time. But Charlot soon was back to his original story, telling the grand jury that “everyone in Church Point dealt with the Colombs,” though he couldn’t provide authorities with the name of a single Colomb drug customer other than himself.

Minutes after Charlot’s alleged drug buy, the local drug task force raided the Colomb home in full SWAT attire, taking down the unlocked front door with a battering ram. They handcuffed Ann Colomb at gunpoint and rummaged through her belongings. James Colomb had to be taken to the hospital with a panic attack and heart palpitations. In a guest room dresser (not Ann Colomb’s panty drawer, where Charlot allegedly told police the drugs were stored), police found 72 grams of crack cocaine, not in rock form, as Charlot alleged, but in round, uncut “cookies,” along with a handgun. The amount of cocaine was significant; a typical “hit” of two to three rocks weighs only a fraction of a gram.

At the time, Ann and James Colomb’s daughter, Jennifer, was staying in the guest room with her then-boyfriend (now husband) Timothy Price. Price, now 26, immediately said the drugs and gun were his. He still does. “I was dealing crack on the side,” Price says. “It wasn’t anything major. And it was stupid. But that stuff was all mine. After we took Jennifer’s dad to the hospital, I heard that they had taken Miss Ann to jail. I can’t tell you how bad I felt. Miss Ann wouldn’t allow a single joint in that house. And because of me, they were trying to say she was some kind of drug dealer.”

Price drove to the police station to turn himself in. “I told them the dope and the gun was mine,” he says. “My mom is a police officer. The gun was hers.”

But Price says the sheriff’s deputies wanted nothing to do with him. “When I told them it was all mine, they put me in a holding cell for about 15 minutes,” he recalls. “Then they came and told me to go home. They said, ‘The dope’s not yours. Tell Edward to come get his momma.’ After that, I didn’t really know what to do.”

Several months later, Price says, Assistant U.S. Attorney Brett Grayson sent him a letter asking him to come in for questioning. By that time, police had traced the gun found with the cocaine to Price’s mother. Nevertheless, Price says, “Mr. Grayson was surprised when I told him the dope was mine.” Grayson and U.S. Attorney Donald Washington did not respond to multiple requests for an interview.

Later, Price says, Grayson tried to convince him to say his girlfriend, Jennifer, had cajoled him into taking a fall for the drugs. When Grayson threatened Price with 10 to 15 years in prison if he continued to claim the cocaine as his own, Price says he decided to get an attorney. When later called before the grand jury, Price acknowledged the gun was his, but on the advice of his lawyer he pled the Fifth Amendment when asked about the drugs.

Today Price says the drugs definitely were his, just as he did immediately after the raid. “I lost a lot of friends and relatives over all of this,” he says. “People looked at me like I was a ghost.” Price was never charged for the cocaine. Five years later, Ann Colomb would take the hit for the cocaine in federal court. Although Price and Jennifer are now married, the Colomb family still hasn’t completely forgiven him. Normally warm, Ann Colomb cools at the mention of Price’s name. Her sons Edward and Sammie roll their eyes when asked about him. But all seem to hold back their disdain now that he’s family.

“He did what he had to do,” Edward says, referring to Price pleading the Fifth. “The drugs were his and he tried to take credit for them. I guess you can’t blame a guy for not wanting to go to jail.”

“He brought drugs into my home,” Ann says. “We can move on from that. Timmy’s going to have to live with what he done. That’s probably enough punishment for him.”

Although the raid was a local police operation, its results soon attracted the attention of Assistant U.S. Attorney Grayson. With the aid of more than 30 jailhouse informants, he would grow it into a major federal drug conspiracy case. The first federal indictment against the Colombs came down in May 2002. Subsequent indictments continued through 2004. The final indictment sought to seize Ann and James Colomb’s home.

One other charge resulted from the raid. When the police came in, they say they found Sammie Davis in a room where an unloaded shotgun was stored in a closet. A police officer at the scene says Davis immediately admitted to him that the gun belonged to him. Davis denies this, explaining that he didn’t even live in the house at the time. (All of Ann’s sons had moved out by then.) Although there was nothing illegal about the gun itself, Davis was a convicted felon, the result of his no-contest plea in the 1993 incident. He’d later be convicted in a separate trial of being a felon in possession of a firearm. The Colomb family’s lawyers believe that news of Sammie’s conviction spread through the federal prison system, inspiring a second wave of jailhouse informants to come to Grayson with new allegations of selling drugs to the Colomb family.

The Government Builds Its Case
Brett Grayson had made a name for himself by bringing down the drug empire of Houston kingpin John Timothy Cotton between 2000 and 2004. But after Cotton’s conviction, defense attorneys alleged that Grayson had relied on improper jailhouse snitch testimony, testimony they say ranged from inconsistent to provably false. One attorney alleged he had proof that a network of federal prison inmates called the “Hot Boyz” were trading and selling information about pending drug cases, including notes from the prosecutors, photos of the suspects, and even grand jury testimony.

But Grayson had collected boxes and boxes of other evidence against Cotton and his associates, so any problems with the snitch testimony, courts later ruled, were “harmless error”—not enough to overturn any convictions. Still, the testimony coming from the inmates at the federal penitentiary in Beaumont, Texas, known as Beaumont Low, troubled U.S. District Court Judge Tucker Melancon (no relation to the Acadia Parish sheriff), who would develop similar misgivings about the jailhouse witnesses Grayson called to the stand to testify against the Colomb family.

It is rare for a sitting federal judge to agree to an interview about one of his cases. Melancon says he can’t remember ever previously speaking with a journalist about the events in his courtroom. But this case bothered him. “I saw some of these [informants] in previous cases,” Melancon says. “It was like revolving-door inmate testimony. The allegation was that there was in the federal justice system a network of folks who were trying to get relief from long sentences by ginning up information on folks being tried in drug cases. I’d heard about it before. But it all culminated in the Colomb trial.”

By the end of 2002, Grayson had found 16 prison informants to testify against the Colombs. According to post-trial motions, Grayson says the informants came to him voluntarily, without solicitation. During the trial, Grayson argued that the informants were credible witnesses because it wasn’t necessarily in their interest to testify. Snitches, Grayson argued, aren’t treated well in prison.

But Grayson’s witnesses had clearly benefited from their testimony when he’d used them in the past, in the form of reduced sentences. One career criminal, Reginald Milstead, had testified for Grayson in a prior case in addition to the Colomb case and in exchange had his life sentence cut down to 10 years—of which he’d already served seven. Another of Grayson’s witnesses had a life sentence reduced to 15 years, according to defense briefs filed after the Colombs’ conviction.

Between June and September 2004, a second wave of inmates sent Grayson letters asking to testify against the Colombs. It began shortly after Sammie Davis was convicted on the gun charge. Grayson signed up an additional 16 witnesses. “Grayson’s home phone number must have been written all over the walls at Beaumont Low,” quips Steve Shapiro, Edward Colomb’s trial lawyer. “He had that whole prison jumping to tell him whatever he wanted to hear.”

Still bothered by what he’d seen at the Cotton trial, Judge Melancon initially attempted to bar Grayson from calling the additional 16 witnesses against Colomb, citing worries that in the years between the Colomb indictments and the trial bad information might have been “trickling” through the prison system and tainting the “search for the truth” that is supposed to be the objective of a criminal trial. But Grayson filed an interlocutory appeal to the U.S. Court of Appeals for the 5th Circuit, which vacated Melancon’s ruling. Melancon was able to exclude just one of the additional witnesses, leaving Grayson with 31 prison informants ready to testify against the Colombs.

The Shady World of Informants
The use of dubious informants is standard practice in drug policing. Narcotics officers routinely recruit drug addicts, rival dealers, and arrestees already facing their own drug charges to make controlled buys from suspected drug dealers or to point out places where drugs might be found. The system is fraught with problems, including a lack of oversight, little accountability, and twisted incentives that encourage shortcuts and corruption.

But even within the already tawdry informant system, jailhouse informants occupy a particularly pernicious niche. Mandatory minimum sentences contribute to the corruption of jailhouse informant testimony. Under federal law, the only way someone serving a mandatory minimum prison sentence can get out early is to provide information or testimony that is of “substantial assistance” to prosecutors. What constitutes “substantial assistance” is solely up to the judgment of prosecutors. Make the prosecutor happy, and you go home early. Tell him something that may well be true but doesn’t quite go far enough to win him an indictment or conviction, and you risk giving up a golden opportunity to cut your time. Critics say it’s a system that suborns outright lying.

“Some of these people would fry their own mother to get out of a 25-year drug sentence,” says Judge Melancon. “You’re going against human nature. And you’ve put in a system that lets human nature run amok, that lets information be passed from inmate to inmate, for pay or otherwise. This is something we need to take very, very seriously.”

The problem isn’t new. In 1990 jailhouse informant Leslie Vernon White, an admitted perjurer, showed a 60 Minutes reporter how, even while in prison, he was able to obtain confidential information about pending prosecutions, then fabricate an incriminating story about a suspect and offer it up to prosecutors in exchange for a reduction in his sentence. Despite doubts about his credibility dating back to the late 1970s, prosecutors continued to put White on the stand until the late 1980s. After much publicity, he was finally indicted for perjury in 1992. White had given a similar interview to Time in 1988, prompting the Los Angeles district attorney to conduct a review that turned
up more than 100 cases potentially tainted by informant testimony. The defense bar later came up with more than 200 more.

In a 2005 report on 111 death row exonerations between 1973 and 2004, the Northwestern University School of Law’s Center on Wrongful Convictions found that 51 involved false testimony from jailhouse informants looking to cut their time. But such studies are rare, in part because of a lack of information.

“We just don’t know,” says Alexandra Natapoff, a professor at the Loyola School of Law in Los Angeles and a leading expert on the use of informants. “The problem is that we don’t require the government to keep track of how informants are used. Where there have been thorough reviews by journalists—in Chicago, for example—we’ve seen common and persistent abuses. It’s bad enough at the federal level. But we really have no idea at all what goes on at the state and local level.”

Judge Melancon says informant abuse at the federal level was made even worse by amendments to the Federal Rules of Criminal Procedure. Broadly speaking, a convicted felon has one year from the date of his sentencing to remember everything he can—to tell the government everything he knows about other criminal activity in exchange for a reduction in his sentence. But amendments passed in 1991, 2002, and 2004 added several exceptions to that rule.

The most problematic of these allows a prisoner to get time off in exchange for information he relays to prosecutors well after the one-year cutoff, if prosecutors believe the prisoner wasn’t aware that the information would have been valuable to them before. Critics say the exception is too vague and too easily manipulated. Prison inmates can now spend the entirety of their sentences monitoring the news and rumor mills for drug prosecutions involving people or places with which they’re even vaguely familiar, then write to prosecutors to offer up information with just enough knowledge of a given town or suspect to appear believable.

“It’s wide open now,” Melancon says. “Everybody in the federal prisons knows what’s going on outside. You’ve got these people with extremely long drug sentences who hear about a drug case in a town they’re familiar with. Now they realize they can tell the government things that happened years ago—true or not—and get time off their sentences.”

Judge James Gray, a drug war critic who sits on the Superior Court of Orange County, California, and also has served as an assistant U.S. attorney, says courts need to give more scrutiny to snitch testimony, and prosecutors need to verify it. “This is a game,” Gray says. “You have lots of people sitting in prison who will do virtually anything to get out. They’ll sell you out in a minute to get out of there. They have nothing to lose and everything to gain. And every guy that guy gives up is going to get his own mandatory minimum sentence. And he then becomes another source of potentially bad information for prosecutors. You can quickly rack up a lot of convictions. But it shouldn’t be surprising if, in the process, you create some cottage industries.”

The Trial
Because there was no appeal, there are no transcripts of the Colomb trial. The account here has been culled from post-trial briefs and rulings as well as interviews with the Colombs, their attorneys, Judge Melancon, and others who sat through the proceedings.

The Colomb trial began on March 20, 2006, with a jury of 11 whites and one Latino woman. There was one black alternate juror. Once Grayson had laid out the four incidents from the 1990s and the details of the 2001 raid, he brought his prison informants into court, one after another, each claiming to have sold enormous quantities of crack and powder cocaine to the Colombs. Most said the transactions took place in public, yet Grayson had no surveillance video, audio recordings, or witnesses to these transactions other than the informants themselves.

Judging from the informant testimony, Edward and Danny Colomb would have been buying some $500,000 worth of wholesale crack cocaine a month in 1994, while both were still in high school. The government alleged that Danny and Edward alone bought more than $15 million in cocaine between 1993 and 1999. Grayson offered no witnesses who bought any of that cocaine, nor did he produce any drugs or money, other than the 72 grams seized in the October 2001 raid.

The Colombs’ lawyers called witnesses who testified to various hard-labor jobs the Colomb boys held during the entire period under question. From 1995 to 1999—the height of the alleged conspiracy—Danny and Edward both took full-time jobs right out of high school doing backbreaking work for a cement contractor in Kaplan, Louisiana. From 1999 through 2000, Danny woke at 3 a.m. and worked until noon five days a week collecting garbage. From 1998 to 2000, while working both these jobs, Danny was also taking night classes at Remington College, where he earned an associate degree in electronics. From 2000 to 2005, he worked full time repairing office machines.

Grayson argued at the trial that he didn’t need to show how or where the Colombs got the money to buy all of that cocaine, or what they did with the money after they’d sold it. During his questioning of witnesses and in his oral arguments, he countered defense evidence of the Colombs’ modest lifestyle by pointing out that drug dealers are frequently robbed of their cash and tend to be deft at hiding and laundering money.

The trial lasted just under two weeks. The jury deliberated for five hours, then came back with its verdict: Edward, Danny, Sammie, and Ann were all guilty of running a drug conspiracy. (Sammie was acquitted on two related charges.) The four were taken into custody, then to a holding prison to await sentencing.

Ann Colomb didn’t do well in prison. “I have diabetes,” she says. “And I couldn’t treat it right in prison. So when I had an attack, they took me to the hospital. Because I was a prisoner, they put me in this cage with these bars and wire. I couldn’t wait with regular people. They kept me waiting in there, like a dog, while I was getting sicker. I couldn’t do anything but sit there in that little cage and look at the walls and wait for the doctor. It took hours. I thought, ‘This is it. I’m going to die in here.’ ”

The prison stint also took a toll on Danny, who was incarcerated just after learning Elizabeth was pregnant. He slipped further into depression. On the hearth in their home, Elizabeth keeps the stack of pictures she and her parents sent Danny while he was in prison. Mixed between family photos, pictures of pets, and wishes from church members were photos Elizabeth took of her bare belly as it swelled with their baby. “The photos got me by,” Danny says. “But I was missing Elizabeth’s pregnancy. And thinking about my child growing up without me was hard to take.”

The Carriers say Elizabeth wasn’t handling it well either. “She lost interest in her pregnancy,” Elizabeth’s mother, Lois, says. “We were worried she was going to lose the baby.”

Grayson’s insistence that the Colomb family be imprisoned while they awaited sentencing surprised both Melancon and the Colomb family’s attorneys. “It seemed mean,” Shapiro, Edward Colomb’s lawyer, says. “He didn’t have to do that.” It also may have come back to bite him. The Colombs’ four months in federal prison introduced them to one brave inmate who came forward with information that would devastate Grayson’s case and set the family free.

The Government’s Case Comes Apart
On the day the Colomb trial began, Assistant U.S. Attorney Joe Mickel, who works in the same office as Brett Grayson, received an extraordinary letter from a federal inmate named Quinn Alex, whom Mickel had prosecuted in a drug case.

While serving time at the Federal Correctional Institution in Three Rivers, Texas, Alex shared a cell with another convicted felon named Charles Anderson. Alex was upset because he had arranged for his girlfriend to wire Anderson’s girlfriend $2,200 in exchange for a file that included information about and photographs of the Colomb family. Alex had heard about the Colomb case from other inmates and planned to use the information he’d bought from Anderson to testify against the Colombs in exchange for time off from his own drug sentence. But after receiving Alex’s money, Anderson was transferred, and he never delivered on his promise.

Alex didn’t write to Mickel to expose the fact that inmates at Three Rivers were illegally sharing information and perjuring themselves in drug prosecutions. He was asking Mickel to prosecute Anderson for stealing his money. But the implications of the letter were profound. It was more evidence in support of the allegations from the Cotton trial about a perjury-generating jailhouse snitch ring in the federal prison system.

Attorneys for the Colomb family would later discover that Alex’s letter implicated several of the witnesses Grayson intended to call at the Colomb trial. In fact, by the time Grayson presented the letter to Judge Melancon on March 24, 2006, three of those witnesses had already testified. Melancon ordered Alex transferred to a nearby facility where he could be questioned by defense attorneys. After consulting with an attorney, Alex took the Fifth Amendment and refused to answer any questions.

The Colombs’ lawyers immediately asked for a mistrial. Perhaps due in part to the fact that he’d already been rebuked by the Fifth Circuit on the issue of informant testimony, Melancon denied the request. The jury in the Colomb case never learned of Alex’s letter. It’s a decision Melancon now says he regrets. “The allegation that money exchanged hands is really troubling,” Melancon says. “Where there’s that much smoke, there must be some fire. I should have declared a mistrial. Had the jury known what I knew, I don’t think they would have returned a guilty verdict.”

Alex’s complaint was more than a mere allegation. Defense lawyers later produced Western Union records documenting the $2,200 transfer. Although he argued against revealing Alex’s letter to the jury, Grayson called just eight more witnesses, far short of the 31 he had originally slated.

More revelations followed. While in the holding facility, Danny Davis met inmate “John Doe” while running prison Bible study sessions, and the two became friends. John Doe served time at Beaumont Low at the same time as many of the witnesses who testified in the Colomb trial. He soon concluded that Davis and his family had been wrongfully convicted. “He told me, ‘I don’t think you’re no drug dealer. And I can’t believe your mama is either,’ ” Davis says. According to the affidavit Doe signed, between 2003 and 2004 he observed witnesses who would later testify in the Colomb case “reviewing documents, including photographs.” He added, “It was obvious to me that these persons and others were preparing to testify against people for something that they did not do.” John Doe’s allegations were specific, verifiable, and consistent with both the Alex letter and the allegations from the Cotton
trial.

Unlike Grayson’s witnesses, John Doe had nothing to gain from coming forward and in fact had quite a bit to lose. “I’m willing to testify in court about what I saw,” he wrote in his affidavit, “because what they did was just cold. However, I am concerned about the danger I am putting myself in, and request that the court protect me.” In May 2006, two more witnesses came forward with evidence that government witnesses lied in the Colomb case. These witnesses also corroborated and confirmed what was in Quinn Alex’s letter and John Doe’s affidavit.

Attorneys for the Colomb family immediately filed motions for a new trial. In a sharply worded ruling issued on August 31, 2006, Judge Melancon threw out all of the Colomb convictions. Moreover, he strongly urged the U.S. Attorney’s Office to conduct a thorough investigation into the allegations of information sharing and ruled that if the government wanted to retry its case, it would have to first present him with the results of that investigation.

“What Judge Melancon did was rather ingenious,” says William Goode, Danny Davis’ lawyer. “The government either had to conduct this big investigation, which almost certainly would have impacted other cases, or they had to drop the charges against the Colombs. There’s no way they were going to conduct that investigation.”

In December 2006, Grayson’s office dropped the charges against the Colombs. Melancon then dismissed them with prejudice, precluding the government from ever bringing them again. Grayson referred all media queries to his supervisor, U.S. Attorney Donald Washington, who then took one last jab at the family. Refusing to admit the Colombs were innocent, Washington told the Lafayette Advertiser, “Though we continue to believe that these defendants were, in fact, trafficking drugs, we have decided not to pursue the case because of witness issues.”

Aftermath
The Colombs are free now and no longer need to worry about the conspiracy case. Ann and James Colomb’s home is safe from the U.S. government’s attempts to seize it. They and their children also say the police harassment has stopped. But the long ordeal took a toll on the family, and Ann and James have no savings left.

Legal experts say the Colombs are unlikely to get any compensation for their wrongful conviction and imprisonment. Last December, they found an attorney to help them with a lawsuit, but it’s a long shot at best, mostly because there’s no one to sue. The prison snitches themselves have no money. Any action against the sheriff’s deputies is well past the deadline set by law and would be difficult to prove anyway.

The most likely target of such a suit would be Assistant U.S. Attorney Grayson and his employer, the U.S. government. But Grayson and the federal government enjoy near total immunity from such suits. Prosecutors are almost completely insulated from lawsuits in order to prevent them from factoring potential litigation into their decision whether to pursue a case. A complaint would have to show that a prosecutor willfully or maliciously pursued charges he knew to be false—both of which are extremely difficult to prove.

After dismissing the charges against the Colombs in December 2006, Judge Melancon strongly urged U.S. Attorney Donald Washington’s office to investigate the allegations of information sharing at the federal prison facilities named in the Cotton and Colomb cases. “The problem wasn’t just this case,” Melancon says. “We potentially have a huge problem with this network in the federal prison system.

The question is how deep and far it goes. It’s worthy of an investigation at the highest levels.” He asked that Washington’s office either conduct its own investigation or have either the U.S. Attorney for the Southern District of Texas (where the prisons are located) or another investigator from the U.S. Department of Justice conduct it.

As of press time, none of the Colomb lawyers, the Colomb family, or anyone else affiliated with the case were aware of any such investigation. Melancon says he’s confident it’s being done, although he’s heard nothing about the investigation since his December 2006 ruling. Phone calls to U.S. Attorney Washington, Assistant U.S. Attorney Grayson, and the U.S. Attorney’s Office for the Southern District of Texas inquiring about the status of the investigation were not returned.

None of the witnesses in the Colomb case has been indicted. In fact, the federal government plans to use some of them again. In May 2006, Assistant U.S. Attorney Todd Clemons indicted seven men in another drug conspiracy case in Louisiana, also stemming from the prosecution of Houston kingpin John Timothy Cotton. According to Alfred Boustany, the attorney for one of the indicted seven, Clemons plans to call witnesses from the same prisons where the allegations of information sharing have lingered, including some of the witnesses from the Colomb case. There are already allegations of information sharing in the new case, including letters turned over by one inmate’s girlfriend in which a prison informant gives other inmates specific instructions on what to say to prosecutors.

Because Judge Melancon is scheduled to preside over that trial as well, he wouldn’t comment on it.

But sources close to the case say that in preliminary court proceedings, Melancon gave federal prosecutors a stern warning that he won’t allow uncorroborated snitch testimony and didn’t want to see a repeat of the Colomb fiasco in his courtroom.

“In my 30 years of criminal defense, the federal court system is the worst I’ve ever seen,” Boustany says. “Especially with drug cases. The government is prodding these people to lie. There’s no other way to look at it.”

Ann Colomb’s lawyer, Gerald Block, adds, “This case scared the hell out of me. These were clearly innocent people. And they nearly went to prison for a long time.”

Last July, Ann Colomb sifted through the half-dozen ratty briefcases cluttering her kitchen counter—cases spilling over with the court documents, arrest records, and statements from her boys and their friends she has collected over the years. She was putting together a short summary of what happened to her and her family to pitch to a Baton Rouge attorney she’d hoped might handle her lawsuit against the government. That attorney declined, as did many others, before she finally found someone to file the suit for her—just before the time limit set by the statute of limitations expired.

“What happened to us should never happen to anyone,” she says. “It breaks my heart that they’re trying to do it again.”

Radley Balko is a senior editor at Reason.

ADDENDUM: On March 13th, after this article went to press but before it appeared in print, Judge Tucker Melancon issued an order stating that on March 10, 2008 he met with U.S. Attorney Donald Washington and several assistant U.S. attorneys (though not Brett Grayson). The subject of the meeting was his order that the allegations of information sharing and perjury among prison informants revealed in the Colomb and Cotton trials be investigated. As a result of that meeting, Melancon determined that his order for an investigation had "been complied with."

The results of that investigation, however, are sealed. A clerk for Melancon said the judge couldn't comment on what was in the report because some of it may pertain to cases that could appear before his court. While that's understandable, it's unfortunate for the Colomb family. Not only will they not get to learn exactly why they were wrongfully convicted and imprisoned, it's likely that the contents of that investigation could be relevant to their civil lawsuit against Grayson and the federal government.

Getting His Goat

jsullum@reason.com (Jacob Sullum) — Tue, 08 Apr 2008 14:48:00 EDT

Jose Merced, a Santeria priest in Euless, Texas, is challenging the city's refusal to let him sacrifice goats. Last month a federal judge upheld Euless' ban on animal sacrifice, and today the Becket Fund for Religious Liberty filed an appeal on Merced's behalf with the U.S. Court of Appeals for the 5th Circuit.

In Employment Division v. Smith, a 1988 case involving the Native American Church's peyote rituals, the U.S. Supreme Court held that "neutral laws of general applicability" do not violate the First Amendment's guarantee of religious freedom merely because they make it difficult or impossible for someone to practice his religion. But five years later, in a case that seems quite similar to Merced's, the Court unanimously overturned ordinances banning animal sacrifice in Hialeah, Florida. Since those ordinances, a direct response to the opening of a Santeria church, singled out the type of animal slaughter practiced by Santerians, the Court concluded they were not "neutral laws of general applicability." Hence they could be justified only if they were narrowly tailored to serve a compelling government interest, which they weren't. Although Euless claims to be protecting public health, it likewise prohibits religious slaughter in particular, while allowing the killing of deer and other animals for food. Becket Fund attorney Lori Windham asks:

Why is it okay to butcher a deer in Euless, but not a goat? The issue of Santeria and animal sacrifice has already been decided by the United States Supreme Court. I'm pretty sure the Constitution of the United States still applies in Euless, Texas.

Last year I explored the legal fallout from Smith in a reason story about religious use of drugs.

When They Knock Kick at Your Front Door

matt.welch@reason.com (Matt Welch) — Tue, 08 Apr 2008 08:32:00 EDT

Phillip Carter, now blogging over at the Washington Post, discovers an especially rancid paragraph from the John Yoo torture memo released last week claiming that whatever 4th Amendment protections we have left no longer apply when it's the U.S. military doing the searching and seizing:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001). [italics in original]

Carter tries to figure out what it all means:

It could refer to the National Security Agency's now-well-publicized surveillance program -- a program grounded in many of the same constitutional theories of presidential power that underlie the torture memoranda. It could also refer to deployment of federal military forces within the United States and action they could take against U.S. citizens, such as hypothetically searching someone's bag for suspected explosives at an airport. (It should be noted that most soldiers deployed for homeland security are state National Guard soldiers, who for complex reasons are subject to different legal rules than federal soldiers.) Or the footnote could refer to clandestine domestic military operations conducted by the Defense Department and its intelligence components -- things we can only guess at.

UPDATE: Senior Editor Jacob Sullum was all over this last week. Excerpt:

That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.
The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

Excuse Me While I Post the Sky

jsullum@reason.com (Jacob Sullum) — Fri, 04 Apr 2008 11:58:00 EDT

Recently I've noted several cases in which state courts have interpreted state constitutions as providing greater privacy protection than the Fourth Amendment, as read by the U.S. Supreme Court, does. Last week the Vermont Supreme Court provided another example, ruling that prolonged helicopter surveillance of a marijuana grower's property from heights as low as 100 feet violated the state constitution's ban on "unreasonable government intrusions into legitimate expectations of privacy." It's not completely clear that the U.S. Supreme Court would have ruled differently under the Fourth Amendment, but I suspect it would have. The most similar case it has addressed involved a police helicopter that circled twice over a marijuana grower's greenhouse at a height of 400 feet, which the Court said did not constitute a search.

In last week's decision, by contrast, the Vermont Supreme Court declared that "Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property":

Vermonters normally expect their property to remain private when posted as such. We have also recognized that Vermonters normally have high expectations of privacy in and around their homes. Therefore, we think it is also likely that Vermonters expect—at least at a private, rural residence on posted land—that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust....
In this case, defendant has demonstrated that he has a subjective expectation of privacy in his back yard. He has taken precautions to exclude others from his back yard by posting his land and by communicating to a local forest official that he did not want people trespassing on his land....It is of no moment that defendant could not effectively post his sky.

My favorite part is that the state police did the aerial search at the suggestion of that "local forest official," who "found defendant's insistence on privacy to be 'paranoid.'"

[via the Drug War Chronicle]

The All-Powerful Commander in Chief

jsullum@reason.com (Jacob Sullum) — Thu, 03 Apr 2008 13:43:00 EDT

In a recently declassified March 2003 memo to the Pentagon's top lawyer, former Deputy Assistant Attorney General John Yoo lays out "the legal standards governing military interrogations of alien unlawful combatants held outside the United States." Yoo reiterates his notoriously demanding definition of torture, which requires suffering "equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result." But this generous understanding of how far the Pentagon can go without violating the statutory prohibition of torture is not really necessary, since Yoo asserts that Congress has no authority under the Constitution to ban the torture of military prisoners in the first place:

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy....One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy....The President enjoys complete discretion in the exercise of his Commander-in-Chief authority in conducting operations against hostile forces....Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war....Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority....Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

According to Yoo, then, no statutory restriction on the Pentagon's treatment of its prisoners, presumably including "enemy combatants" unilaterally identified by the president and arrested on U.S. soil, could be legally binding, because it would unconstitutionally impinge on the president's powers as commander in chief. Never mind that the Constitution gives Congress the authority not only to declare war but "to make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," and to suspend the habeas corpus privilege "in cases of rebellion or invasion," all of which seem to imply that the legislative branch has some say regarding the handling of military prisoners.

In Yoo's view, the president's constitutional powers are so broad that the Constitution itself cannot restrain them. As the ACLU notes, a footnote on page 8 of the memo refers to a still-classified October 2001 document in which the Justice Department's Office of Legal Counsel "concluded that the Fourth Amendment had no application to domestic military operations." That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

The full text of the March 2003 memo is available from the ACLU here.

Put on Your Red Shoes and Dance the Blues

matt.welch@reason.com (Matt Welch) — Thu, 20 Mar 2008 09:16:00 EDT

George Will devotes his column today to a case well-known to reason.tv viewers: the family-owned Arizona bar/restaurant getting hassled and fined nonstop by local nanny-boos for allowing its customers to dance. Will -- who has been writing this season's most withering attacks on John McCain (1, 2, 3, 4) -- makes an interesting point about the necessary role of judicial activism in rolling back such nonsense:

Beyond the weeds there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.

For more along those lines, see Damon Root's excellent libertarian case for judicial activism back in July 2005. And for Kevin Bacon's sake, watch Drew Carey lord over the dance ban here.

Send Jesse Ventura!

matt.welch@reason.com (Matt Welch) — Fri, 14 Mar 2008 16:26:00 EDT

The former Minnesota governor is reportedly pondering an independent run at the White House, and releasing a new book with the rather desperate title of Don't Start the Revolution Without Me! In which he asks: "As I begin to write this book, I'm facing probably the most monumental decision of my 56 years on this planet. Will I run for president of the United States, as an independent, in 2008? Or will I stay as far away from the fray as possible, in a place with no electricity, on a remote beach in Mexico?"

In either case, here's hoping he rocks this 'do:

A more haggard-looking Governor Body cross-examined by Truthers here. Lots of great past reason coverage of Ventura here.

They Ain't Gonna Pee-Pee in No Cup

jsullum@reason.com (Jacob Sullum) — Fri, 14 Mar 2008 10:59:00 EDT

Yesterday the Washington Supreme Court unanimously ruled that random drug testing of student athletes violates the state constitution. The U.S. Supreme Court has upheld random testing not only of athletes but of students participating in other extracurricular activities as well, and its logic (such as it is) suggests that random testing of all students also would be consistent with the Fourth Amendment. But Washington's constitution has a privacy guarantee that goes beyond the prohibition of unreasonable searches and seizures, saying, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The state Supreme Court has read this clause as providing more protection than the Fourth Amendment, which is why Washington is one of the few states without drunk driving roadblocks. It also seems to be a pretty strong argument against the state law that makes it a felony to place an online bet in the privacy of one's home.

The Washington Supreme Court ruling on student drug testing is here. A couple months ago, I noted that Washington Gov. Christine Gregoire wants to hop on the sobriety checkpoint bandwagon, despite the state Supreme Court's ruling that suspicionless traffic stops violate the constitution she has sworn to uphold. A challenge to Washington's gambling law, based on arguments that it conflicts with the federal Wire Act and the Commerce Clause, is scheduled to be heard next month.

Washington is not the only state where residents enjoy more privacy protection than the Fourth Amendment (as currently read) guarantees. The Pennsylvania Supreme Court, for example, has taken a dimmer view of student drug testing than the U.S. Supreme Court. The Alaska Supreme Court has interpreted the state constitution's privacy clause, which says the "right of the people to privacy is recognized and shall not be infringed," as prohibiting prosecution of people for possessing small amounts of marijuana at home. It has approved drug testing of police and firefighters applying for promotion or transfer but has ruled that random testing of police and firefighters is unconstitutional.

[Thanks to sage and Jim Anderson for the tip.]

AT&T Works In More Places....

bdoherty@reason.com (Brian Doherty) — Thu, 28 Feb 2008 13:39:00 EST

For some real-world commentary on the recent telecommunications company/FISA brouhaha, see the work of the Billboard Liberation Front on a San Francisco AT & T billboard yesterday.

For more sober and detailed commentary on this matter see, to begin with, Julian Sanchez's "Time for Democrats to Lead on FISA" from December.

Isn't Self-Defense Common Sense?

jsullum@reason.com (Jacob Sullum) — Wed, 27 Feb 2008 07:00:00 EST

Under the Second Amendment, Barack Obama says, "There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation." The leading candidate for the Democratic presidential nomination thus seems to be on the same wavelength as the U.S. Court of Appeals for the District of Columbia Circuit, which in a decision last March said "the protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

But there is a crucial difference between these superficially similar formulations: The appeals court meant what it said, and Obama doesn't. Although the Illinois senator has learned to pay lip service to the Second Amendment, the details of his past and present positions on gun control suggest he neither understands nor respects the right to keep and bear arms.

In last year's ruling, which the U.S. Supreme Court will soon review, the D.C. Circuit overturned a Washington, D.C., gun law that bans possession of handguns in the home and requires that rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The law thereby effectively bars city residents from using firearms for self-defense in their own homes.

Obama evidently considers that de facto prohibition a "common-sense regulation," since he recently cited Washington's law as an example of constitutionally permissible gun control. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't borne out by our Constitution," he said.

The D.C. gun law, passed in 1975, isn't really about gangbangers, which it has not exactly disarmed, or random shootings on the street, which it has not noticeably curbed. In effect if not intent, it is about disarming law-abiding residents who might want to protect themselves from gangbangers and other violent criminals.

It's not surprising that Obama sees nothing unconstitutional about this situation, since he does not acknowledge that the Second Amendment has anything to do with self-defense. "As a former constitutional law professor, Barack Obama understands and believes in the constitutional right of Americans to bear arms," his website claims. "He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting" (emphasis added).

This is the only substantive discussion of the Second Amendment on Obama's website. It's part of a document that lists "Protecting Gun Rights" as a subcategory of "Supporting the Rights and Traditions of Sportsmen," which is like listing "Protecting Freedom of Speech" as a subcategory of "Supporting the Rights and Traditions of Auctioneers."

It's true that hunting—at the time an important source of sustenance, as opposed to the hobby it has become for most Americans—was one of the gun uses the Framers had in mind when they guaranteed the right to arms. But as the D.C. Circuit emphasized when it found Washington's gun law unconstitutional, "the people's right to arms was auxiliary to the natural right of self-preservation," which was "understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

Because Obama ignores these aspects of the Second Amendment, he sees no constitutional barrier to a complete ban on the manufacture, sale, and possession of handguns, which he supported when he ran for the Illinois Senate in 1996. Two years later he said he favored a ban on the sale or transfer of all semiautomatic firearms, which would cover not only most handguns but many hunting rifles and shotguns as well.

Responding to criticism that Obama has since changed his position on gun control, his campaign declares that "Obama has been consistent." If so, consistent civil libertarians—the ones who do not mentally skip from the First Amendment to the Fourth—should be worried.

© Copyright 2008 by Creators Syndicate Inc.

Training Mississippi's Kids

jwalker@reason.com (Jesse Walker) — Tue, 26 Feb 2008 12:05:00 EST

The State of Mississippi is shutting down a juvenile prison called the Columbia Training School. Here are a few snapshots of life at Columbia, as compiled by investigators from the Southern Poverty Law Center [PDF]:

Youth reported that they had either observed or experienced having their arms and legs shackled to poles in public places. For instance, one young girl reported that her arms and legs were handcuffed and shackled around a utility pole because she was non-compliant during military exercises. The rest of the unit was forced to perform military drills around her. The youth was shackled for at least three hours, released for lunch, and briefly shackled again....Another girl reported that two weeks prior to our visit, she was shackled to a pole for talking in the cafeteria. Still another girl reported that she was shackled to a pole for approximately four hours because she did not say, "Yes, sir," on command....

Girls in the SIU at Columbia are punished for acting out or for being suicidal by being placed in a cell called the "dark room." The "dark room" is a locked, windowless isolation cell with lighting controlled by staff. When the lights are turned out, as the girls reported they are when the room is in use, the room is completely dark. The room is stripped of everything but a drain in the floor which serves as a toilet. Most girls are stripped naked when placed in the dark room....

In the girls' SIU at Columbia, staff reportedly have hit, choked, and slapped girls. For instance, girls reported that a ten-year-old girl was slapped by a male security guard. A young boy in the boys' SIU reported that before being taken to the SIU, security slapped him twice in the face and placed his neck in a sleeper hold....At Columbia, boys in the SIU reported that staff sprayed [pepper spray] under their locked cell doors and that staff sprayed boys in the face while they were hog-tied. Boys also told us that staff sprayed into the air while boys were doing exercises for punishment in the SIU. Incident reports make clear that suicidal youth are sprayed for their suicidal gestures and behaviors and that youth locked in isolation rooms who bang on the door of their cell are sprayed. A log entry for the SIU in May 2002 indicates that a suicidal girl was sprayed because she refused to remove her clothes before being placed in the dark room.

And who are these detainees?

The majority...are nonviolent offenders. For example, 75 percent of the girls at Columbia are committed for status offenses, probation violations, or contempt of court.

I should add that while I'm generally skeptical about the SPLC, for reasons laid out by Ken Silverstein in Harper's eight years ago, the group isn't alone here: The "training school" has been pilloried in the media and was targeted (obviously) by investigators elsewhere in the government. If anything, I'm happy to see the SPLC attack an actual threat to people's civil rights, as opposed to raising a panic about the bogeyman of the "extreme right." It wasn't a handful of doofuses in sheets who abused those kids at Columbia. It was prison staffers paid by Mississippi taxpayers.

Correction: The SPLC played an important role in closing the institution, but it did not, as I carelessly stated, write the report I quoted. The investigators who compiled it were employed by the U.S. Department of Justice.

Heirs of a Terror War, That's What We've Become...

bdoherty@reason.com (Brian Doherty) — Tue, 19 Feb 2008 20:50:00 EST

Bush is once again trying to cut its budget to a mere $900 million (and will likely fail, like he did last year, when asking for that sum got him $1.3 billion appropriated by Congress), and while continuing its (sadly eternal) dying gasps, Amtrak makes the experience of riding the rails even more annoying:

Amtrak will start randomly screening passengers' carry-on bags this week in a new security push that includes officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains.
The initiative, to be announced by the railroad on Tuesday, is a significant shift for Amtrak. Unlike the airlines, it has had relatively little visible increase in security since the 2001 terrorist attacks, a distinction that has enabled it to attract passengers eager to avoid airport hassles.
Amtrak officials insist their new procedures won't hold up the flow of passengers.
"On-time performance is a key element of Amtrak service. We are fully mindful of that. This is not about train delays," Bill Rooney, the railroad's vice president for security strategy and special operations, told The Associated Press.

Peter Bagge cartoons wickedly on the Amtrak experience, from our Dec. 2005 issue.