Drugs and the Criminal Justice System

VIII. Drugs and Police

Given the historical precedent of treating the drug problem as a crime problem, as opposed to a public health problem, it should not be surprising that the modern war on drugs is weighted heavily toward interdiction and law enforcement. Each year since 1996, more people have been arrested on drug charges than for any other offense, with the number approaching 2 million people annually. As many as 80% of those arrests are for simple drug possession.

Enforcement has always been the top priority, but within the law enforcement community, there has been some recognition of the value of prevention. Although in the past, the DEA and FBI have provided modest support to prevention programs, by far the most visible of the law enforcement prevention efforts has been the Drug Abuse Resistance Education (D.A.R.E.) program administered by local police.

A. Drug Abuse Resistance Education (D.A.R.E.)

Created in 1983 by the chief of the Los Angeles Police Department, D.A.R.E. trained local police all across the country to visit local elementary and senior high school classrooms to educate students about the harmful effects of drugs and to teach them techniques for resisting drug use. The program became immediately popular and at one point was taught in as many as 80% of the schools in the United States. Although well received by parents, school officials, and local police, systematic evaluations of the program were generally disappointing, suggesting little or no effect on subsequent student drug use. In 2003, the General Accounting Office summarized the existing research on D.A.R.E. and concluded that the program did not reduce drug use. While there was some evidence that the program increased negative opinions about drugs, those effects were short term at best. Others questioned whether D.A.R.E. encouraged children to turn in their parents and friends, and wondered whether this was an appropriate value to instill in students. Despite scientific evidence suggesting its ineffectiveness and concerns about the ethical implications of the program, D.A.R.E. continues to be popular, and the model has been adapted to an anti-gang program called Gang Resistance Education and Training (GREAT).

Even at its peak, D.A.R.E. represented only a small fraction of police efforts against drugs. The primary task for police is to find and arrest those who possess and sell drugs. The problem for police is that drug possession and sales are what are known as consensual crimes. That is, all parties involved have an interest in keeping their activity from the police. There is no victim in the sense that there is a victim in a homicide or robbery. This means that police must actively seek out drug dealers and users who are actively seeking to avoid detection. This has several implications for the nature of drug enforcement. First, it means that the number of drug-related arrests will be a direct reflection of the amount of resources police put into drug enforcement. Second, it means that police are encouraged to use a variety of surreptitious means to make drug cases, such as using informants and undercover officers. Third, criminal justice officials who handle drug cases may be particularly susceptible to corruption. For example, a drug dealer with 10 kilos of cocaine is not likely to complain if the case against him or her is based on 2 kilos, with the other 8 kilos having been taken by an undercover officer. Attention is now directed to some of the more controversial issues raised in drug enforcement cases.

B. Profiling

The idea of identifying drug dealers and drug couriers through the use of profiles appeals to people’s sense that humans follow predictable patterns of behavior and that science can identify those patterns and use that knowledge to apprehend drug offenders. The idea of profiling has several dimensions. First is the use of behavioral and environmental cues to identify offenders. This was first tried in the late 1960s to identify potential airplane hijackers. This early effort failed, and hijacking was only reduced when all passengers were screened for weapons, a process that intensified after the 2001 attack on the World Trade Center. The first efforts to use profiling to identify drug couriers happened in the mid-1970s when a DEA agent at the Detroit airport developed a list of 11 characteristics that would suggest someone was a drug courier.

Ordinarily, the courts have rather strict rules about what scientific evidence may be admitted in court, but behavior-based profiles have been accepted as valid even though there is no scientific proof as to their effectiveness. The courts have ruled that the full profile need not be revealed in court, to protect the integrity of the profile. Instead, officers need only identify the key element used in the profile. An examination of court cases in which profiles were used reveals that over time the list of identifying characteristics became so expansive that nearly everyone could be said to fit the profile. For example, the key identifying characteristics named in various court cases have included the following: first to deplane, last to deplane, and middle to deplane. Some cases were triggered by the individual acting too nervous, while others were triggered by the individual acting too calm, and so on. Eventually, this model was applied to highway stops with an equally wild variability in the factors that were used to identify someone as a drug courier. The public’s faith in profiling was bolstered by sensational cases involving serial killers. The agents who developed these profiles became minor celebrities, and a host of movies and television programs touted the accuracy of serial killer profiles. Despite the public fascination with this approach, no serial killer has ever been found because of a profile. Behavioral profiling may someday prove a valuable tool, but to date it has yet to prove its value.

More controversial is a second form of profiling in which race is the key identifying characteristic. This has proven to be one of the more explosive issues in criminal justice. Many minority drivers believe they are stopped simply because of their race, while police typically deny that race plays a role in traffic stops. What is known is that in many (but not all) communities, minority drivers are stopped and searched by police at a disproportionately high rate. Further, even if most police don’t engage in race-based profiling, the actions of a few can lead minority drivers to accurately feel they are targeted. Thus far, research has done little to resolve the issue, partly because a conclusive answer requires entering the heads of individual police officers to accurately know what motivated their decision. Unfortunately, police themselves have only reluctantly cooperated with research, generally oppose collecting data that would allow individual officers to be identified, and have opposed programs that would use profiles to identify problem officers. This resistance further arouses the suspicions of minority drivers.

Research has yet to prove that race-based profiling is ubiquitous, as some believe, or has been greatly exaggerated, as is believed by others. Whatever the reality, the perception of minorities that they are targeted by police does a tremendous amount of damage to police–community relations and undercuts broader enforcement efforts.

C. Informants

Another controversial issue in drug law enforcement is the use of criminal informants. Informants are people who provide information about criminal activity to the police. While informants provide valuable information for many types of crime, the consensual and secretive nature of drug dealing requires that informants be used more frequently in drug cases than for any other type of criminal case. Nearly all drug cases in some way utilize informants.

The assistance of honest citizens is often valuable in solving crime. Controversy arises, however, when criminals provide information to the police. Criminals are often in a unique position to observe the criminal activity of others, but their motives are not always pure, and they sometimes provide misleading information that frames innocent citizens or exaggerates the criminal involvement of others. Some may cooperate in exchange for cash payments and others to exact revenge. The most common reason why criminals cooperate with police is to have their own charges reduced or dropped altogether. A drug dealer facing 20 years in prison has strong incentives to have his or her charges reduced by telling police about people with whom the dealer has done business, or to even seek out additional co-offenders. The larger the number of names they can provide the police, the greater the sentence reduction such informants can expect. Consequently, they may face considerable pressure to fabricate information.

Particular problems can arise when criminal informants are released with instructions to build cases over time. In order to move among fellow drug dealers, it may be necessary for informants to buy and sell drugs. This, in turn, puts the police in the curious position of shielding someone who is making drugs available in the community. In some cases, the drug-dealing activity of the informant may be greater than that of the people upon whom he is informing. Some informants have used their positions to eliminate competitors while expanding their own drug businesses. In other cases, police may look the other way when the informant pockets a portion of seized drugs in exchange for continuing to provide information to the authorities. Sometimes the drug dealer is also a drug user, and the informant may be allowed to continue using in order to effectively gather information on the street. This becomes particularly problematic when the user overdoses while working for the police or when juveniles are allowed to continue buying and using drugs while gathering information for the authorities.

The use of criminal informants is a dilemma for the police. Without informants, it would be difficult or impossible to make many drug cases. At the same time, using criminal informants presents a host of legal and ethical problems. It may mean tolerating criminal activity by informants, obtaining false or misleading information, or putting the addict who is discovered to be an informant at risk of being killed, while doing work that ultimately should be done by the police themselves.

D. Asset Forfeiture

By any account, the drug business is one that generates enormous revenues. Much of the effort to control drugs has focused on arresting buyers and sellers, and for many years, the revenues from drugs were secondary to enforcement efforts. Asset forfeiture represents a shift in focus from the criminal actor to the financial gain derived from criminal acts. In principle, this is perfectly reasonable and just. In practice, however, the law can be misused. To understand how this can happen, it is important to recognize there are two types of asset forfeiture— criminal and civil. Criminal forfeiture, about which there is little controversy, applies after someone has been convicted of a crime. As an example, no one expects a convicted bank robber to keep money gained from the robbery. Controversy arises with civil forfeiture, which is very different.

The distinguishing feature of civil forfeiture is that it is an in rem proceeding. That is, the legal action is against the property itself. The issue is not the guilt or innocence of the owner but the guilt or innocence of the property. For example, the legal title of a criminal case might be “The State of Texas versus John Smith,” whereas in a civil case the title might be “The State of Texas versus a 2008 Ford Mustang.” For much of the history of the United States, there were rather strict limits on the ability of the government to apply civil forfeiture. In the mid-1980s, as part of sweeping legislative changes to provide more tools to fight the war on drugs, Congress enacted legislation giving federal authorities broad powers to seize cash and property under civil law. States soon followed suit, passing their own civil forfeiture statutes.

There are numerous implications of treating forfeiture as a civil matter. Most serious is that as a civil procedure, many of the basic constitutional protections afforded by the Bill of Rights do not directly apply. This was particularly problematic in the early years of these statutes, which were passed with few restrictions on law enforcement. Consequently, hearsay (rumors) could be used as the basis for seizing property. The property owner had no absolute right to be present at a forfeiture hearing. If the property owner was present and asserted his or her right to remain silent, exercising that right could be used as proof of the property’s guilt. If the owner chose to speak and said anything incriminating, those statements could later be used in a criminal case against the owner. While the innocence of the owner could be considered in the decision to forfeit property, the owner’s innocence was no absolute defense against forfeiture because the issue was the guilt of the property, not the owner. Thus, an innocent landlord could lose his property if a tenant conducted a drug deal in one of his apartments. Further, the property was considered owned by the government from the moment it was used in a drug transaction. Consequently, an innocent citizen who purchased a house that had been used in a drug deal by the previous owner might lose that house. Unlike a criminal case, in which the burden of proof was on the state to prove the defendant’s guilt, in civil forfeiture cases, the burden of proof was on the property owner to prove the property’s innocence. In effect, the property was guilty until proven innocent. Because the property was assumed guilty, it could not be used as collateral for a loan to hire a defense attorney. In some cases, the owner was required to post a bond of as much as $5,000 for the privilege of asking for the return of his or her property. And, even if the property was returned, the courts were allowed to keep all or a part of that bond to cover the cost of the proceedings. Civil forfeiture does not require that the owner of the property be convicted of a crime, and in as many as 80% of forfeiture cases, there is no criminal conviction.

Law enforcement agencies were initially allowed to keep seized assets, and for many agencies, forfeiture became an important way to supplement their budget. Some drug agents were under greater pressure to seize cash than to seize drugs or to arrest dealers. Consequently, there were instances of agents luring drug dealers into their community so they could seize their cars and cash, or allowing large drug shipments to be sold on the street so that cash could be seized. Stories of misused funds and innocent owners losing their property made their way into the press and put on pressure for change. In many ways, states led the way in reforming forfeiture laws. Stories of the gross misuse of the law and of the forfeited funds, along with the realization that seized assets could be used to shore up sagging state budgets, led most states to require that seized assets go to general revenue rather than the agency. Although it became possible through something called “adoptive forfeiture” for local agencies to keep a portion of the seized assets by having the forfeiture done in cooperation with federal authorities, the pressure to make large seizures was substantially reduced. At the federal level, three Supreme Court cases in 1993 and a change in federal law in 2000 placed some restrictions on the application of federal civil forfeiture. Civil forfeiture remains an area with a high potential for abuse, but as a consequence of changes at the state and federal levels, there are fewer stories today of the law’s misuse. Still, the possibility of the misuse of civil forfeiture remains, and there are concerns that the model created for drug enforcement is now being exported to a range of other crimes.

In the United States, police are at the front line in the war on drugs. Because drug enforcement requires that police seek out offenders, the number of cases they generate depends not only on how many dealers and users exist in a community but also on the resources the police commit to drug enforcement. If money for drug agents is cut, one can expect a corresponding reduction in the number of drug cases. For police, the size of the war is very much a reflection of the size of the budget. Those elements of the criminal justice system that follow—courts and corrections—do not have the luxury of deciding how many cases they will handle. For the most part, their workload is determined by the decisions made by police and prosecutors. Attention is now turned to their role in the war on drugs.

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