Reason Magazine - Staff > Radley Balko

A Hollow Victory?

rbalko@reason.com (Radley Balko) — Wed, 02 Jul 2008 12:00:00 EDT

For all of the hype, last week's Second Amendment ruling by the Supreme Court won't have much practical effect, at least in the short term. And we likely won't know it's long-term implications for years.

D.C. v. Heller wasn't so much a victory for gun rights as it was a deft aversion of defeat. The Supreme Court addressed its first broad gun rights case in decades and came away finding that the Constitution confers an individual right to bear arms, not a collective right. A 5-4 decision the other way would have been devastating.

Still, this victory seems hollow. Perhaps that's in part because of the narrow way the case was argued by the plaintiff, D.C. security guard Dick Anthony Heller (disclosure: I have several friends and former colleagues who worked on Mr. Heller's case).

Heller's lawyers' strategy (a wise one, in my opinion) was to argue the case narrowly enough that courts couldn't throw it out, forcing the federal court system once and for all to determine whether the Second Amendment's right to keep and bear arms applies strictly to militias or to each of us as individuals.

Writing for the majority, Justice Antonin Scalia ruled for the latter, but with some broad exceptions.

And there's the rub. Scalia's opinion says the Second Amendment's "individual right" to bear arms extends only to self defense and, even then, only in one's home. Perhaps in part to help secure a five-vote majority, Scalia seems to have gone out of his way to explain that the Court wasn't invalidating laws against concealed carry, laws against "unusual or dangerous" weapons, licensure and permit laws, or laws against possessing weapons in "sensitive areas."

Second Amendment scholar Nelson Lund writes that Scalia's exceptions could be significant: Should white-collar felons guilty of nonviolent crimes such as tax evasion or insider trading be barred forever from possessing a gun for self-defense?

Scalia's "sensitive areas" might well include the likes of post-Katrina New Orleans—places where the government is striving to preserve order but where the citizens are in most need of arms for self-defense.

Scalia's opinion also neglected to embrace the Second Amendment as a bulwark against government tyranny, an argument that may at first blush seem anachronistic and impractical but that history shows ought not be taken lightly.

One needn't be a modern-day mountain militiaman to observe that authoritarian regimes often become tyrannical after first disarming the citizenry. As Thomas Jefferson put it, "When the people fear their government, there is tyranny; when the government fears the people, there is liberty."

Most significantly, Scalia's decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

To be fair, the plaintiff in the case was a resident of Washington, D.C., and didn't ask the Court to address incorporation. Still, Scalia broached the matter in a footnote but was vague and ambivalent about his intentions, leading to competing interpretations over whether he would or wouldn't be amenable to incorporation.

Scalia has tended to be skeptical of the idea of broadly applying the Bill of Rights to the states. He also has a history of prioritizing his law-and-order instincts over his allegiance to limited government principals and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzalez v. Raich.

There, Scalia's fondness for the drug war trumped his alleged federalist principles. His and Justice Anthony Kennedy's vote to validate the federal government's efforts to subvert state laws allowing for the use of medical marijuana essentially halted the Court's incremental, 10-year "federalism revolution," which some speculate may have resulted in overturning Wickard v. Filburn, the 60-year-old Commerce Clause case that broadly expanded the power of Congress to intervene in the most minute of personal affairs.

Until the incorporation issue is resolved—which likely will take years—last week's decision, while symbolically significant, has limited practical effect. It means only that the citizens of Washington, D.C., and other federal protectorates have the right to own a handgun for the purpose of self-protection.

But that right only extends to gun ownership in the home, and even then, it's subject to all sorts of restrictions and licensure requirements. Just how strict those requirements can be (could D.C. pass a six-month waiting period for handgun purchases?) will need to be resolved by litigation.

Outside of D.C., nothing has changed. The Heller decision won't affect other cities with gun restrictions as severe as those in D.C. So-called "assault weapon bans" still are valid. All Heller did outside the nation's capital was remove the possibility that Congress might one day pass a blanket federal ban on all firearm ownership, which seemed like a remote possibility, anyway.

Pan back a bit and the cause for skepticism grows. The Bill of Rights never was intended to be a list of the only rights we have; in fact, the founders worried that future generations might interpret it that way, which is why they included the Ninth and Tenth amendments.

Rather, the Bill of Rights includes the rights the founders considered most important, those necessary to secure and preserve all of the others.

The right to bear arms appears second on the list. And yet even here, on an issue that's become a central tenet of conservative philosophy, we have a decision written by the Court's most conservative justice that can't even uphold the second addition to the Bill of Rights without a series of caveats, exceptions, and asides. And it's a ruling that, practically speaking, applies that right to only a sliver of the country's 300 million residents.

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the Court over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Heller was a symbolic victory, and the lawyers who brought the longshot case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

Radley Balko is a senior editor of reason. A version of this article originally appeared on FoxNews.com.

Coca Zero

rbalko@reason.com (Radley Balko) — Fri, 04 Jul 2008 12:00:00 EDT

Indigenous people in Bolivia and Peru have been growing, chewing, and drinking tea made from coca plants for thousands of years. It’s used habitually in these poor countries to stave off hunger, pain, thirst, and fatigue; as a mild stimulant; and in religious rituals. The United Nations now says this has to stop—in order to facilitate the developed world’s war on processed cocaine.

The U.N.’s drug enforcement agency, the International Narcotics Control Board (INCB), recommended in March that Bolivia and Peru criminalize the chewing of coca leaves and the boiling of the leaves to make tea. The move has triggered widespread protests in both countries, which trail only Colombia in annual coca production.

In 1961 the U.N. aimed to eradicate all global coca crops. Since 1988, however, it has tolerated the plant when it is grown for leaf chewing and tea drinking. The INCB now wants to return to its original, more sweeping goal, arguing that chewing coca leaves sets one on the path to cocaine dependence, an assertion experts say isn’t backed by any scientific data.

The U.S. ambassador to Bolivia, Philip Goldberg, told the Associated Press in 2006 that the “only” use for coca leaves is cocaine. That claim is belied by the fact that 115 tons of decocainized leaves are imported each year by an Illinois-based chemical firm that then sends them to the Coca-Cola Company to flavor its famous soft drink.

Bolivia’s leftist president, Evo Morales, was elected in part because he presented himself as a champion of the cocaleros, or Andean coca farmers, promising to protect the plant in the face of mounting efforts by the U.S. and U.N. to prohibit it in all of its forms. After having spent more than $5 billion in its failed Latin American coca eradication efforts, the U.S. nevertheless intends to keep up the pressure. When Morales announced that he would attempt to raise the quota on the amount of coca each citizen of Bolivia is permitted to grow for personal use, the U.S. responded by slashing aid to the country by 25 percent.

Too Much Information?

rbalko@reason.com (Radley Balko) — Wed, 25 Jun 2008 16:00:00 EDT

Restaurants in New York City with 15 or more outlets nationwide now must conspicuously post the nutritional content of each item on their menus. Similar legislation is coming to San Francisco and Seattle, and is under consideration in about a dozen other cities and state legislatures.

At first blush, this seems like a good idea. Why not force restaurants to let their consumers know the nutritional value of what they're about to eat? If we're to believe what the public health world says about our bulging waistlines, perhaps a little more information would be a good thing.

The American Prospect's Ezra Klein made this argument last month, writing, "It's a bit rich to watch libertarians and associated anti-government types oppose a regulation that gives consumers more useful information. This, after all, is how markets are supposed to work best. Consumers have better information, can pursue their preferences in a more coherent manner, and the market can provide, adapt, and innovate in response."

It's a compelling argument. But the menu labeling debate is actually a bit more complicated than that.

First, it's expensive to send an entrée to a nutrition lab for testing. Labs typically charge $850 to $1,000 for the service, and most restaurants will want to test an item more than once to ensure accuracy. Any "have it your way" customization of an item would also need to be tested, which means a typical sandwich might need to be tested dozens of times to account for the various condiments and accouterments a restaurant may want to offer.

There is another way to gauge the nutritional content of menu items that's a bit less expensive. That is to break every item down to its most basic ingredients and their quantities, then to run those ingredients through a nutritional database, which adds the ingredients up, then spits out totals. This too has it's problems, in that it requires restaurants to (a) turn over proprietary recipes for analysis, and (b) abide by those recipes every time, without fail (remember this the next time a fast food critic laments how "it all tastes the same").

The main problem with all of this is that it requires restaurants to slavishly adhere to the recipes of the dishes they originally sent away for testing. Let's say a particular batch of tomatoes delivered to a restaurant were particularly bland, for whatever reason. Don't even think about adding an extra dash of salt to your dish to compensate. If the original dish had only a dash of salt, you've just doubled the sodium content.

You can also forget about substitutes, seasonal variety, or allowing customers to customize dishes in ways that haven't been broken down.

Forget about "going local," too. Buying from local growers is less predictable than buying from a national network of food suppliers, where shortages or disappointing harvests from one area of the country can be accounted for by purchasing more from other areas. Buying local would require variance in menus that could become cost prohibitive.

Menu labeling laws mean every restaurant in a given chain needs to make every dish exactly the same way, every time. Most menu labeling laws allow for a 20 percent margin of error. This is the same variance allowed for the nutritional information on manufactured food products, where assembly-line machines cut exact portions and abide by standardized recipes using the same ingredients, every time. That's quite a bit different than having real live people making dishes from what's available in the kitchen. Yet both are held to the same standard.

Of course, the labeling of manufactured foods is another argument in favor of the futility of these menu labeling laws. We've been labeling packaged foods for decades now—the foods that make up the vast majority of our meals and snacks and where we get most of our energy. And we're still getting fatter.

Supporters of menu labeling laws know that complying with these laws will be expensive and onerous. That's why they've only applied them to chain restaurants—restaurants they say can afford to send dishes off for nutritional testing. That makes the targets of menu labeling laws corporations, a more politically palatable target than the mom and pop diner.

Still knowing that adding a new dish to the menu could cost several thousand dollars and will almost certainly result in one of two consequences: Either restaurants will dramatically cut down on variety and serve only meticulously portioned cookie-cutter dishes, or they'll merely pass the costs of testing additional dishes on to consumers.

Certainly, the chains that just make the cut of 10-15 franchises (depending on which law you're talking about) will think twice before offering a perk like daily specials, where each new daily dish could add thousands of dollars to the company's bottom line.

But even large chains are going to be more hesitant about regional variety. And chefs at high-end spots like steakhouse chains are going to be extremely unlikely to create customized meals, or prepare dishes for people with specialized diets.

The other response to the "we're only requiring this of the restaurants who can afford it" argument is that if that's the case, what's the point of having the law in the first place? The New York City law will only affect about 10 percent of the city's eateries. If the goal is to combat obesity, you're missing 90 percent of the places where people are eating.

What's more, according to the National Restaurant Association, we buy just six of our 21 weekly meals from restaurants. Put another way, menu labeling laws mean this newly available nutritional information will be put in front of the average American for only about three of every 100 meals. We aren't getting fatter because there aren't fat-count stickers on our Big Mac wrappers—as if any of us were mistaking a Big Mac or chili-and-cheese slathered fries for a healthy snack, anyway.

Of course, most of the really large chains already make nutritional information available—either online or in pamphlets you can find at the restaurant. Calorie counters and people watching their sodium or sugar intake can find this information relatively easily if they need it. And they can choose not to patronize those restaurants that don't make it available.

The menu labeling crowd wants nutritional information posted in big letters on menu boards or slapped on the packaging of the foodstuffs themselves. The goal of menu labeling legislation, then, is much more paternalistic than merely to "make more information available." It's to force nutritional information on people who aren't necessarily looking for it.

Then there are the lawsuits. When McDonalds voluntarily agreed to post its nutritional information on the Web several years ago, it wasn't long at all before the nutrition fanatics at the Center for Science in the Public Interest (CSPI) attacked the company because a couple of McDonalds employees served covert CSPI reps overly large ice cream cones.

Earlier this month, a Seattle firm filed a class action suit against the Applebee's chain because of what the firm says were errors in its nutritional menu labeling. Days later, the same firm filed a similar suit in Texas, this time aimed at the Brinker chain, which owns brands such as Chili's and Macaroni Grill. Of course, if these restaurants deliberately mislabeled nutritional information or didn't bother to accurately test food labeled as "healthy," they should be held accountable.

But it's also impossible to make the same dish the exact same way every time. Such is the reason why large chains that already chose to make nutritional information available test the same dish multiple times to arrive at an average. But if you're looking for a reason to sue, you're only going to include in your claim the chains that served dishes that came out well over the posted data, not under or within a reasonable margin of error.

This is the main reason why restaurants have been reluctant to provide nutritional information in the first place. An extra pat of butter, an extra dash of salt, a substitution here or there, or even a generous chef who —God forbid—decides to give a customer a generous portion, could trigger a class action lawsuit.

These menu labeling bills have put restaurants in a no-win predicament. Their best bet is to mechanize their kitchens and to take all variety and spontaneity out of their menus—which isn't exactly a good outcome for consumers. And you can bet that when the latest round of menu labeling bills fails to make us any skinnier, the nutrition activists will start taking aim at the smaller chains and independent restaurants too.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

The Public Spinmeisters

rbalko@reason.com (Radley Balko) — Tue, 10 Jun 2008 12:00:00 EDT

The release of former Bush Press Secretary Scott McClellan's tell-all memoir has Washington buzzing, though there's a certain Capt. Renault-like phoniness to all the indignation: Are we really all that surprised that this administration—or for that matter, any administration—would ask its press secretary to lie, mislead, or dissemble in front of the media?

Should we really be shocked-shocked! that the White House might also keep its press secretary out of the loop when it comes to brewing political scandals, so he can convincingly feign ignorance when the press queries him about them?

While ostensibly serving as a liaison between the press and the president, White House press secretaries serve really only one function: to boost the president's image. White House press offices are little more than public relations machines for the administration they're serving.

They're wells of information when the president's announcing a new federal program or policy or when he's doing well in the polls—when the tone and tenor of the political climate. But at the first hint of controversy, they shut down. Presidents by now know to keep damning information as far from their press offices as possible.

When the tough questions come, press secretaries can then credibly assert that they "have no knowledge" or that they "weren't briefed" on the nasty stuff. For historical examples, see Clinton spokesmen Mike McCurry or Joe Lockhart during the sexual harassment scandals and, later, the impeachment trial. Or Reagan press secretaries Larry Speakes and Marlon Fitzwater during Iran Contra.

Perhaps the last truly honorable press secretary was Jerald terHorst, who resigned from the Ford administration after just a month in office. terHorst had strong objections to Ford's pardoning of Richard Nixon, and felt he could no longer in good conscience defend Ford's policies to the media. So he stepped down.

Bush's most widely praised press secretaries thus far have been Tony Snow and Ari Fleischer. But they aren't praised for their efforts at getting important, impartial information to the public. They're praised for the way they were able to flack with conviction—to be evasive without actually sounding evasive. The best press secretaries can spin like dervishes while having you believe you're getting it straight.

When under fire, the best press spokesmen thrive by appearing to communicate with us-while actually saying nothing substantive at all. In other words, the best presidential secretaries aren't notable for their public service, but for their talents at misleading the public.

So why are we paying for all of this? Why are taxpayers asked to foot the bill for the president's public relations machine?

Granted, in the grand scheme of things, it isn't that much money. The press secretary makes around $165,000 per year, deputies $70,000 to $130,000. Still, it's the principle of it all. We shouldn't be paying a White House press staff and press office whose main objective is to lie to us (of course, you could make a good argument that we pay most politicians to do the same thing, but that's another matter.)

I say we stop up the spigot. No more tax dollars for political flacks. If the president, his cabinet, and their staffs want press spokesmen, let them pay for them with campaign funds, or out of their own pockets. The purpose of a political campaign, after all, is to sell a candidate to the public.

The president's press office's job is to sell the president to the public. They serve the same purpose. It's insulting that what essentially are campaign staff are paid with taxpayer dollars under the false and farcical guise of "transparency." Fact is, when a press office is most important-during a scandal, or allegations of corruption or abuse of power-its main objective is obfuscation, the opposite of transparency.

While we're at it, we shouldn't be using public funds to pay the press secretaries and communications officers on House and Senate staff, either. They aren't nearly as prominent as the White House press spokesmen and women, but here too, their job isn't to give the public access to its lawmakers so much as it is to tout and promote the lawmakers themselves.

Taxpayer-funded press offices also contribute to an incumbency advantage. Yes, there's supposed to be a hard and fast line between a politician's campaign press and his official-duties press. But let's be honest. Touting the latest federal earmark for the water sanitation plant back home in a press release wins votes. Challengers have to pay for all of their press work from campaign funds. Incumbents should, too.

I suppose some would argue that without press offices, our politicians would be even less answerable and accountable to the public than they already are. I'll concede that my plan certainly wouldn't make them more accountable. But I doubt it will make them much less accountable, either. Politicians will still want to distribute information about how wonderful they are. Congressional representatives will still want their home districts to know how much federal pork they've procured for the local college, police department, and public works project. They'll still find a way to get that information out.

In other words, we'd still have press offices, and they'd still be doing much of the same thing they do today-touting the wisdom, good looks, and selfless public service of the boss. The main difference is that instead of pushing on taxpayers the indignity of forcing us to pay for being propagandized to, the agitprop would come from a campaign office, and be paid for with campaign money.

No one else gets a well-oiled PR machine at taxpayer expense. Why should politicians?

Radley Balko is a senior editor for reason and maintains at Web log at TheAgitator.com. This article originally appeared at Foxnews.com

'30 Years of Failure'

rbalko@reason.com (Radley Balko) — Fri, 23 May 2008 15:00:00 EDT

RateMyCop.com

rbalko@reason.com (Radley Balko) — Tue, 13 May 2008 12:00:00 EDT

Many police departments have set up Internet registries for sex offenders and drug offenders, and police also have begun posting the pictures and names of suspected johns online. Still, police groups took umbrage when a site called RateMyCop.com appeared in March.

Site founder Gino Sesto wrote to police departments across the country and obtained lists of the names and badge numbers of their officers. He then posted the names online in a format broken down by state and city, encouraging users to rate their experiences with individual officers.

All of the information Sesto posted was already open to the public, and he didn’t reveal the identities of any undercover officers. But police groups were outraged, making the dubious argument that posting publicly available names and badge numbers on the Internet somehow jeopardized officers’ safety. Jerry Dyer, president of the California Police Chiefs Association, told Wired the site could give citizens the opportunity to “unfairly malign” individual officers. He added that he’d be asking the state legislature to ban sites like RateMyCop.com.

Then in March, hosting service GoDaddy mysteriously terminated Sesto’s account and pulled RateMyCop.com offline. GoDaddy has offered several explanations to Wired, none of which has made much sense. Sesto gave up on GoDaddy and tried to get the site hosted at RackSpace. After initially accepting his down payment for hosting services, RackSpace sent a letter to Sesto saying, “We believe that the website to be found at www.ratemycop.com as described to our sales representative could create a risk to the health and safety of law enforcement officers.” At press time the site was back online, but its future is uncertain.

Republic of Montana

rbalko@reason.com (Radley Balko) — Tue, 13 May 2008 12:00:00 EDT

Several dozen Montana politicians, including Secretary of State Brad Johnson, have adopted an unconventional take on the Second Amendment case currently before the U.S. Supreme Court: They’ve threatened secession. D.C. v. Heller, the first substantive Second Amendment case the Court has heard in nearly 70 years, could definitively settle whether the right to bear arms is an individual right or a collective right.

In a joint resolution, the Montana politicians argue that when Washington approved the state constitution, including a clause granting “any person” the right to bear arms, upon the Treasure State’s entry into the Union in 1889, the federal government recognized that clause as consistent with the Second Amendment. If the Court comes down on the side of a collective right, they argue, it would breach the compact for statehood between Montana and the federal government.

“Some speak of a ‘living constitution,’ the meaning of which may evolve and change over time,” supporters of the resolution explain on their website. “However, the concept of a ‘living contract,’ one to be disregarded or revised at the whim of one party thereto, is unknown.” Therefore, they argue, “A collective rights holding in Heller would not only open the Pandora’s box of unilaterally morphing contracts, it would also poise Montana to claim appropriate and historically entrenched remedies for contract violation.” Said remedies include opting out of its breached compact with the federal government—in other words, seceding from the Union.

Soundbite: Freeing the Innocent

rbalko@reason.com (Radley Balko) — Sun, 01 Jun 2008 22:36:00 EDT

In 2006 Craig Watkins became the first elected African-American district attorney in Texas history. He presides in Dallas County, where the D.A.’s office is known for its aggressive prosecution tactics. A former defense attorney, Watkins says the office has operated for too long on a “convict at all costs” philosophy. A string of wrongful convictions uncovered by the Texas Innocence Project in the months before Watkins was elected reinforces his point. Watkins ran on a reform platform and won a surprising victory against a more experienced Republican opponent.

After taking office, Watkins, 40, dismissed nine top-level prosecutors; nine others left voluntarily. He established a Conviction Integrity Unit to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of wrongful conviction. Senior Editor Radley Balko spoke with Watkins in March.

Q: You’re critical of the mind-set of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who for 35 years held the job you now hold, embodied that philosophy. He’s alleged even to have boasted about convicting innocent people—that putting an innocent man in jail proved his prowess as a prosecutor.

A: It was a badge of honor at the time to knowingly convict someone that wasn’t guilty. It’s widely known among defense attorneys and prosecutors from that era. We had to clean out all the remnants of that older way of thinking.

Q: It’s hard to imagine anyone opposed to seeking out and freeing the wrongfully convicted. Do you have critics?

A: We’re actually encountering a lot of criticism right now.

Q: What arguments do they make?

A: Initially, their argument was that it’s not the role of a prosecutor to look for bad convictions—that that’s the role of a defense attorney. But both the criminal code of the state of Texas and the American Bar Association’s code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he’s not, you don’t. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.

Their new argument is, “Is this cost effective? Is this unit a net benefit for Dallas County?” I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective.

Q: Dallas County has the highest exoneration rate in the country, in part because of a fluke: Dallas is one of the few places that preserved DNA evidence beginning in the 1980s. Do you think the system in Dallas was particularly broken, or would we be seeing similarly high numbers elsewhere had more evidence been preserved?

A: I think it’s mostly because evidence was preserved in Dallas. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and be able to say without a doubt that a person is innocent.

Q: What specific steps did you take after winning office to address this issue?

A: The first thing we did was set up this Conviction Integrity Unit in the district attorney’s office. We staffed it with two attorneys and two investigators and told them to look at some 400 cases for which there was DNA available to test, to see if there’s reason to suspect a wrongful conviction. If they find cases, we’ll collect the DNA and test it. If it shows the person in prison is innocent, we’ll start proceedings for an exoneration.

We intend to have this section here in this office forever. This is not a pilot program. It’s something I’d like to see spread across the country.

Q: Do you think you’ll be re-elected?

A: I don’t think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach here. We convict the guilty, and we free the innocent.

Presidential Power-Tripping

rbalko@reason.com (Radley Balko) — Thu, 22 May 2008 15:00:00 EDT

In our history and civics classes, we're taught that the genius of the Constitution is the checks and balances it imposes on the three branches of government. The founders understood that each branch—the president, the Congress and the courts—would seek to expand its power. They then set up a system that not only acknowledges man's desire to accumulate power but also one that harnesses that desire and uses it to keep any one branch from becoming too influential.

That system has mostly served us well. But an important new book details how the delicate balance of power in the federal government has been unraveling for nearly a century now, and underscores how important it is that we elect a president this November who understands the constitutional boundaries of the office.

Unfortunately, that isn't likely to happen.

The Cult of the Presidency by the Cato Institute's Gene Healy (I should disclose that Healy is a friend and former colleague) provides a history of the office of the presidency. It's a fascinating narrative of how the office that was meant to be little more than an administrator of the nation's laws (George Washington referred to it as "chief magistrate") has grown into the equivalent of an elected monarch.

It's a curious thing in America that each July we celebrate how the founding fathers threw off the shackles of an oppressive monarchy, that we favorably compare our republican system of governance with the world's tyrants, dictatorships and monarchies (and rightly so)—and yet we then celebrate those American presidents who most behaved like tyrants, monarchs and dictators.

Presidents like Woodrow Wilson, Teddy Roosevelt, Franklin Roosevelt and Harry Truman are regularly put at the top of lists of America's greatest presidents. This is true when both historians and the American public at large are polled. Yet these are presidents who did everything they could to expand the power of their offices, to extend the sphere of influence of the federal government and to bully through policies that met inconvenient hurdles otherwise known as checks and balances.

Woodrow Wilson ran for president on a peace platform, then dragged us through the bloody trench carnage of World War I. Oh, and he imprisoned thousands of critics and war protesters in the process. Teddy Roosevelt once lamented that he didn't have a war during his administration to make him great, and compared the stakes of his third-party run for the White House to the rapture and second coming of Jesus Christ.

Franklin Roosevelt broke the tradition set by George Washington of serving just two terms. When the Supreme Court rebuffed his attempts to pass unconstitutional legislation, he tried to expand the number of justices on the Court to ensure a friendly majority. Harry Truman was the first president to pull America into a protracted war without first consulting Congress. He then sought to nationalize private companies to ensure that war was properly outfitted.

These are odd men to call heroes.

Inexplicably, the presidents who knew and understood their constitutional limits, who respected those limits and who generally took a more laissez-faire approach to government get short shrift—even derision—from historians.

Men like Calvin Coolidge, Warren Harding, Rutherford B. Hayes and Grover Cleveland merely exhibited what Healy calls "stolid, boring competence." Historians loathe them, Healy writes, because they had the audacity to "content themselves simply with presiding over peace and prosperity" and not seek to remake the world in their own image. The nerve of them.

Today, the president oversees 1.8 million federal employees. The federal government is America's largest employer. Moreover, we today expect much more from the president than merely to enforce the nation's laws. We expect him to console us in times of tragedy or natural disaster, to inspire us in times of war. Some even look to the president for spiritual guidance. The enormity of the office grows more unsettling when you consider the set of skills and traits it takes to get elected. As Healy explains, the long, brutal, expensive primary and general election process selects people with massive egos, people willing to subject themselves to all sorts of abuse in the pursuit of power and people willing to accept favors from all sorts of interests as they ascend from office to office—favors from people who generally expect to be repaid.

George Washington set perhaps the most important precedent in the history of the idea of a constitutional republic when he declined to seek a third term. He could have been a king if he'd so chosen. Despite achieving myth-like reverence and adulation while still in office, Washington had the humility and the foresight to understand the importance of leaving power on the table. Doing so not only limited his own power but began the voluntary two-term tradition that lasted 140 years.

While both Barack Obama and John McCain have in some way acknowledged that the Bush administration has dangerously pushed the limits of executive power, neither has indicated exactly what powers, if elected, he would give back or what steps he'd take to make sure those powers aren't later invoked by a successor.

Perhaps it's too much to hope for another George Washington. Instead, this November, it looks as if our choices are a man who styles himself after John F. Kennedy and a man who idolizes Teddy Roosevelt.

That doesn't bode well for the next four years, or for the imperial presidency's continuing threat to American democracy.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

So Long, Seattle

rbalko@reason.com (Radley Balko) — Thu, 01 May 2008 19:56:00 EDT

In November 2006 voters in Seattle overwhelmingly approved a ballot initiative prohibiting taxpayer subsidies to professional sports teams. The vote effectively killed plans to build a $220 million taxpayer-funded stadium, shopping area, and practice court for the Seattle SuperSonics. The team had recently been sold to a group of investors led by the Oklahoma City businessman Clayton I. Bennett, who had threatened to move the team out of state unless he was given a new building.

In 2007 Bennett again unveiled plans for a new stadium, saying, “The net benefit of this building will provide an economic upside and will not be a tax drain.” When that effort also failed, Bennett concluded his only option was to move the team out of state. But to do so he needs to get out of his lease with Seattle’s Key Arena. The city argues that he should have to compensate it not just for the lost rental income but for the benefits the community receives as home to the Sonics. That puts Bennett in the uncomfortable position of now minimizing the team’s impact on the city.

“The financial issue is simple, and the city’s analysts agree, there will be no net economic loss if the Sonics leave Seattle,” Bennett’s lawyers argue in a brief. “Entertainment dollars not spent on the Sonics will be spent on Seattle’s many other sports and entertainment options. Seattleites will not reduce their entertainment budget simply because the Sonics leave.” The Seattle Times reports the team commissioned a survey showing that 66 percent of Seattleites say there would be “no difference” in their lives should the team decide to leave.

Even if Bennett’s legal strategy in Seattle is successful, it’s almost certain to come back to haunt him. If, as Bennett’s lawyers argue and most sports economists agree, money not spent at professional sports events would otherwise be spent on other entertainment in the city, Bennett will have a hard time making his case to voters in Oklahoma City. There he’s pushing for a $100 million subsidy package to fix up the city’s Ford Center stadium and build a new practice facility in the hope of bringing the Sonics to the Midwest.

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.

Operation Overdose

rbalko@reason.com (Radley Balko) — Thu, 01 May 2008 19:47:00 EDT

When people who have overdosed on heroin or morphine arrive in emergency rooms, they’re given a drug called naloxone. Public health advocates say a new version of the drug, marketed as Narcan, can be administered outside a hospital setting, potentially saving thousands of lives.

The antidote to opiate overdose comes in the form of a nasal spray that retails for about $10. Because it isn’t possible to administer Narcan in lethal doses, about 40 nonprofit groups and public health agencies across the United States have begun distributing kits containing a vial of the drug and a nasal sprayer to drug users.

The results have been encouraging. In January, Alex Kral of the research firm RTI International looked at 16 organizations distributing the kits and found that they’ve trained 20,950 people in how to give Narcan to an overdosing drug user. The trainees have successfully reversed 2,642 overdoses.

But not everyone is enthusiastic. Bertha Madras, deputy director of the Office of National Drug Control Policy, recently told National Public Radio that she opposes the distribution programs because she believes life-threatening overdoses are an important deterrent to drug use: “Sometimes having an overdose, being in an emergency room, having that contact with a health care professional is enough to make a person snap into the reality of the situation and snap into having someone give them services.” Take away the possibility of a fatal overdose, she argued, and more people will use drugs.

Suing the DA

rbalko@reason.com (Radley Balko) — Thu, 24 Apr 2008 12:00:00 EDT

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits. In the 1976 case Imbler v. Pachtman, the U.S. Supreme Court carved out a wide exception to the law to exempt prosecutors. The Court said common law tradition grants prosecutors have what's known as "absolute immunity" from civil rights suits, meaning that they can't be sued, provided they're acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work (judges have absolute immunity as well).

But this complete shield from accountability is especially problematic when we're talking about prosecutors. It's a job that's already plagued by incentive problems. We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they'll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what's called "qualified immunity" from civil rights suits, which in 1983 the Supreme Court determined meant, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn't even seek to overturn the 1976 decision in Imbler. That would take an act of Congress—and again, perhaps that's something Congress should consider.

Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney's office. It says that he's guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I'd be pleasantly surprised if they allowed Goldstein's lawsuit to go forward. But they should.

More broadly, we need to reconsider the idea of absolute immunity for prosecutors.

There's plenty of evidence that this shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington's office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb is now suing Washington's office. Whether her suit will be permitted to go forward may depend on what the Supreme Court does in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed—if uncomfortable—sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

Burn the Byrne

rbalko@reason.com (Radley Balko) — Tue, 15 Apr 2008 07:00:00 EDT

Last month, police in Kentucky went on a 24-hour drug raid blitz. According to local media accounts, the raids uncovered 23 methamphetamine labs, seized more than 2,400 pounds of marijuana, identified 16 drug-endangered children and arrested 565 people for illegal drug use.

That's quite a day's work.

What inspired the blitz? Complaints from the citizenry? A vicious string of drug-related murders? An outbreak of overdoses?

No, none of that.

It seems that they were concerned that the federal government is about to turn off the funding spigot.

"During 'Operation Byrne Blitz,'" a local television station reported, "state police and highway patrol agencies, local police and sheriff's departments, and drug task forces throughout the country conducted undercover investigations, marijuana eradication efforts and drug interdiction activities. The collaborative effort, named for the federal grant program which funds many of the anti-drug efforts, underscored the impact that cuts to this funding could have on local and statewide drug enforcement."

The federal grant they're referring to, the Byrne Grant, is problematic for a lot of reasons. Chief among them is the way it warps police priorities by tying drug arrests to the federal teat.

The grants are often tied to arrest statistics, which encourage police officers to target low-level drug offenders instead of major dealers and suppliers. The grants often create multi-jurisdictional "drug task forces," which—because their authority extends across several counties—many times aren't directly accountable to anyone.

It was a Byrne-funded task force in Tulia, Texas, for example, that in 1999 arrested and prosecuted 46 people of drug crimes based on the word of an undercover police informant later found to have fabricated evidence.

Another task force wrongfully arrested and prosecuted 28 people in Hearne, Texas the next year, this time based on the word of a criminal police informant. In fact, the situation got so bad in Texas that the state eventually banned multi-jurisdictional drug task forces.

Because most Byrne grants are also tied directly to drug arrests, they encourage local police departments to use their manpower and resources on nonviolent drug offenses instead of more serious crimes like rape, robbery, or murder.

Surprisingly, it was the Republican-led Congress that started phasing out Byrne grants in the 1990s, a trend that has continued through the Bush administration, though they haven't yet been eliminated completely.

It's a good idea.

Even if you happen to be a supporter of the drug war, these grants do little to help fight it, and only serve to make local police departments less accountable and less transparent. Even the White House Office of Management and Budget has been sharply critical of the program.

Unfortunately, Congressional Democrats (and many Republicans) can't resist the easy, positive publicity that comes with a press release announcing the procurement of federal crime-fighting pork for the local police department.

Congress is now discussing bringing back Byrne grants in full force. One leading senate proponent of re-funding the grants is, unfortunately, Democratic presidential frontrunner Barack Obama.

But let's go back to Kentucky.

Kentucky Justice and Public Safety Secretary J. Michael Brown told one local media outlet of the Byrne-grant bltiz, "The impact of our drug task forces can be clearly seen in the success of this one-day blitz. While combining these efforts in a 24-hour period makes a statement, it's important to remember that these types of activities go on every day, and are a critical tool in eradicating illegal use."

That's one way of looking at it.

But here's a different possibility: If police in Kentucky can go out and find 2,400 pounds of marijuana in 24-hours anytime they want, just to make a political statement, that might be a pretty good sign that the grants—and the drug war in general—aren't working.

Radley Balko is a senior editor for reason.