Wednesday, September 12, 2012

Casualties of the war on drugs

Over my legal career one of the cases I am most proud of involved a federal drug forfeiture case I worked on. The victims of the forfeiture were a husband and wife and their four children. The federal prosecution, facilitated by a paid informant, landed both parents in federal prison for years and tore them away from their children. Then the federal government tried to take their home.

When [the parents] were faced with both prison sentences and the loss of their Vermont home, some had very little sympathy for their efforts to keep their four children together in the only home they had ever known. Their response when asked, “But what about the children?” was “Well, they should have thought about that before they got involved with drugs.” Fighting negative public opinion, the [parents] persisted in bringing their concerns to the press and their legislators. Their efforts were instrumental in raising awareness of the plight of child victims of forfeiture, and resulted in a debate on the rights of children in such cases, as well as front-page coverage in Vermont papers and on TV, and a piece in the New York Times law section, picture and all (“When a Forfeiture Means Uprooting the Innocent,” 5/15/92). In this article, Jessica, the . . . oldest child, then 15 said, “I haven't done anything for the past two years. I can't go on vacation because I don't want to come back and find the house boarded up. My parents should serve time for what they did, but the government shouldn't take our house. I've lived here since I was three. It's punishing us kids a lot.” (In this case, the . . .  two oldest children were actually part owners of their home under the terms of a divorce settlement between Patricia and their father -- a fact the government wished to ignore). 

I was able to represent two of the children, obtain representation for the other two, and work with the lawyers for the two parents to save the home for the children. At the time I had not heard of any similar case in which a family home was preserved for the children, so aside from the suffering and deprivation the family had to endure during the imprisonment it was a good result, and I'm happy to say that the family is still strong.

At the time I considered, and still consider, the paid informant to be lower than whale shit, abusing the trust of people who thought he was their friend for his own benefit. I wonder if he has ever felt remorse for what he did.

There are cases, though, in which the informant is as much a victim as anyone else. A recent New Yorker has an excellent article about confidential informants in drug cases, documenting a number of cases in which people arrested for minor drug charges were forced to become undercover informants. Sometimes, as happened to three young people profiled in the article, things go badly wrong (what could go wrong when you send an unsophisticated kid into a drug buy with cash, hard drugs, and guns, right?) and the undercover informant winds up getting murdered by the people the police sent them to gather evidence from.

You should read the whole article, but the gist of it is clear. The War on Drugs depends for its very existence on the coerced use of informants, some of whom are minors; informants are involved in up to eighty percent of all drug prosecutions. The informants are sent into dangerous situations with little or no training and inadequate supervision and backup. Their efforts not only enable drug prosecutions, they also provide support for the forfeiture industry, in which local, state, and federal agencies cash in on drug prosecutions by seizing the assets of the defendants in a system of "guilty until proven innocent" cases filed not against the person but against the property itself. (The case I was involved in was officially called The United States of America v. Eleven Acres of Land, More or Less.) These forfeiture cases enable them to buy guns, fancy cars (think Don Johnson's Ferrari on Miami Vice) and other equipment.  Finally, the system of mandatory minimum sentences not only imposes harsh sentences on minor offenses, increases the terrible incentive to become an informant, and includes rewards for acceptance of responsibility and cooperation with other prosecutions.

We have seen over the years that the War on Drugs has shredded our constitutional rights. It has inflicted terrible devastation on individuals, families, and communities. Now, we now see that for people unfortunate enough to be trapped into working for the government, the War on Drugs can be fatal.

Certainly there are reforms that could be introduced in the system of confidential informants and asset forfeiture, but the real problem is the War on Drugs itself. As long as we continue this pointless and futile effort we can expect that the battleground will be covered by the bodies of its casualties.

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