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chapter
6
R
I
C
A
R
D
,
Drugs and the
Criminal Justice
System
A
D
R
I
E
If I pull someone over for a traffic offense and they are
N
acting really nervous, I usually ask if I can search their vehiN
cle. Even though they may have drugs inEtheir vehicle,
After you have completed this chapter,
you should have an
understanding of
● Attempts to control the production and/or cultivation
of illicit drugs in foreign
countries
● The role of law enforcement
in illicit drug interdiction
● Different types of street-level
drug operations
● Asset forfeiture and the
federal RICO statute
● Federal and state penalties
for drug trafficking
● Mandatory minimum
sentencing
● Drug courts for nonviolent
drug offenders
most people still consent to the search. If they refuse to
consent, then I usually call for a drug dog. When
it arrives,
2
the dog smells around the outside of the 4
vehicle. If the
dog hits on drugs, we have probable cause7to conduct a
search of the entire vehicle. You would not 9
believe all the
places I have found drugs. People have hidden
drugs in
T
their tires and inside hidden compartmentsSin their dashboard, and one guy even hid cocaine in a false leg that
he was wearing.
—A sheriff’s deputy from Gwinnett County, Georgia
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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The criminal justice system in the United States
plays a major role in our society’s response to drug
abuse. Essentially, it attempts to reduce the availability of illicit drugs to the general public and penalize
the producers, distributors, and users of illicit drugs.
This chapter will examine the principal strategies
devised to accomplish these goals, including programs aimed at crop eradication, the control of precursor chemicals, efforts at interdiction of illicit drugs
at our borders, the use of undercover operations, the
use of asset forfeiture, punishments for those possessing or trafficking in illicit drugs, and the establishment of drug courts.
Law enforcement has always been, and remains,
the predominant method of waging the “war on
drugs” at the federal, state, and local levels. Of the
billions of dollars spent, most of the money is spent
on drug-law enforcement (Figure 6.1). A key goal of
drug-law enforcement is to control the supply of illicit drugs by interrupting the source, transit, distribution, and eventual purchase of drugs. Therefore, it is
useful to examine drug-law enforcement in terms of
four major activities: (1) source control, (2) interdiction, (3) street-level enforcement, and (4) the correctional system. Chapter 16 will concern itself with
efforts toward reducing the demand for illicit as well
as licit drugs through prevention and treatment.
source control: Law enforcement actions that reduce
or eliminate the cultivation and production of illicit
drugs in foreign countries.
Source Control
Source control requires activities aimed at limiting the
cultivation and production of illicit drugs in foreign countries. These activities include crop eradication, control of
precursor chemicals, and the U.S. certification process.
The source-control problem in the 1970s with
respect to heroin was considerably easier than it is today.
At that time, 80 percent of the heroin used in the
United States originated from opium poppies grown in
Turkey. The opium was shipped to southern French
port cities, where it was converted to heroin and then
later
R smuggled into the United States—the “French
connection.” In an attempt to reduce the amount of
I coming into the United States, the United States
heroin
and
C France offered Turkey $35 million to ban opium
production and to help Turkish farmers develop new
A crops. Initially, this action did lead to a shortage of
cash
heroin
R on American streets in 1973. The success of the
Turkish initiative led to the official adoption of a more
D
comprehensive
crop-eradication strategy as a means for
reducing
illicit drug supplies in the U.S.1
,
The nature of the illicit drug trade today, however, is
quite different from what it was in the 1970s. In recent
years,
A we have been challenged by the geographical diversity in the sources of cultivation and production of illicit
D
drugs and the fact that the sources themselves can change
soR
rapidly. The Drug Enforcement Administration (DEA)
Heroin
Signature Program, for example, is designed to
I
provide indications of the geographic origins of heroin at
E wholesale level. Heroin samples are drawn from
the
port-of-entry
seizures as well as seizures and purchases
N
N
E
FIGURE 6.1
Budget authority in millions
4,500
3,500
3,000
2,500
2,000
1,500
500
■
Domestic law
enforcement
Interdiction
U.S. federal drug control
budget (in millions) for fiscal years 2008, 2009, and
2010
Source: Office of National
Drug Control Policy (2009,
May). National drug control strategy FY 2010 budget summary. Washington,
DC: Office of National
Drug Control Policy, p. 1.
1,000
0
116
2
4
7
9
T
S
4,000
FY 2009
FY 2010
FY 2011
Treatment
Prevention
International
Part One
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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submitted to DEA laboratories. Purity and, if possible,
geographic sources of the heroin are evaluated. Exact
purity levels are relatively easy to ascertain, but an exact
determination of where the drugs have originated is
much more difficult.
Crop Eradication
Crop eradication programs have focused on the reduction of crop yields with respect to opium poppies, coca
plants, and marijuana plants in their countries of origin.
Eradication programs are driven by the premise that
decreasing marijuana cultivation and opium and coca
cultivation for the production of heroin and cocaine
R
respectively makes these drugs more expensive, and
potentially reduces the level of drug use (see Drugs . .I.
in Focus, Chapter 5). Crops are eradicated both manuC
ally and with herbicides. Herbicides (chemicals that kill
A
plants) are either sprayed or dropped from the air as pellets that melt into the soil when it rains.
R
D
,
A
D
R
I
E
N
N
E
2
4
7
9
T
S
Coca plants are destroyed in a crop eradication program in
Colombia. These efforts have been financed, in large part, by
the U.S. Department of State through the Andean Counterdrug Initiative.
Chapter 6
The counter-moves of source nations for illicit
drugs illustrate the difficulty of reducing drug supplies
by means of crop eradication. For example, from 1998
to 2002, intensive coca eradication programs in Colombia
were implemented.2 By 2006, these programs had succeeded in reducing Colombian coca cultivation in traditional growing areas, but growers simply moved out of
these locations to clear the land and establish coca
fields in more inaccessible areas, less known for largescale cultivation. Growers have taken to adopting radical pruning (drastic cutting back the coca bush, often
down to the ground, to protect the plants from aerial
spraying) and vigorous replanting of sprayed coca.
These procedures have promoted rapid regeneration or
replacement of sprayed coca fields.3 Clearly, eradication
efforts have produced, at best, only short term, localized
benefits.
Whether or not the adverse environmental impact
of crop eradication programs outweighs the benefits in
illicit drug control has been hotly debated. Proponents
of crop eradication claim that coca production can be
considered more harmful to the environment than crop
eradication. Multiple harvests of coca on steep mountain slopes accelerate soil erosion, and improper use of
dangerous chemical fertilizers causes water contamination. In addition, the processing of coca leaves into
cocaine paste involves a series of toxic chemicals that
causes further environmental pollution. On the other
hand, it can be argued that the herbicide chemicals used
in crop eradication have produced irreversible contamination of local water supplies, and the relocation of coca
fields to previously uncultivated land has produced
extensive deforestation that have reduced valuable rain
forest resources.4
Unfortunately, in many impoverished regions of
the world, crop eradication results in a disruption of an
already-fragile local economy. The cultivation of marijuana, coca, or opium poppies for many poor families
represents their only source of significant income. On
occasion, tensions between peasant farmers and governmental agencies have risen to levels of confrontation. In
1996, for example, more than 50,000 peasants from several remote areas in southern Colombia converged on
larger towns to protest the fumigation of their fields of
coca and poppies. The demonstrators burned vehicles
and tried to block local airstrips to disrupt the local
economy. Two peasants were killed and several others
crop eradication: Programs in which opium poppies,
coca plants, and marijuana plants are destroyed in
their countries of origin, prior to transport overseas.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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were injured. To put a halt to the revolt, the Colombian
army resorted to blowing up the few roads leading to the
main towns to obstruct the way of the demonstrators.5
To avoid a similar revolt, the Peruvian government
in 2002 launched a financial plan, backed by the United
States, to provide money for peasant farmers who voluntarily got rid of their coca crops. In this instance, no soldiers or police were assigned to take part in the
eradication effort. Their absence was intended to avoid
conflict between the government and the approximately 400,000 families that subsisted directly or indirectly
through coca production. Families received $150 in
Peruvian currency for every hectare (2.47 acres) of
destroyed coca. The Peruvian government also attempted
to promote alternative crops for the farmers, such as
corn, banana trees, and rubber. The peasants who
received money, however, found it difficult to stop growing coca because the alternatives were far less lucrative.6
It is, therefore, questionable whether crop eradication can be a successful strategy for reducing illicit drug
supplies in the world. While worldwide cocaine production declined by approximately eight percent between
2006 and in 2007, primarily as a result of coca eradication programs, empirical studies of both crop eradication
and crop substitution programs have found that these
programs have had little impact on the production of
either cocaine or opium.7 The available evidence has
shown that, on a global level, there rarely has been more
than a 10 percent decrease of any one type of illicit crop
in any given year. Even when there is a reduction in the
cultivation of a particular crop, such as coca or opium
poppies, in one part of the world, there is typically an
increase in the cultivation in another part of the world.
Over the years, crop eradication programs in Peru and
Bolivia, for example, have led to an increase in coca production in Colombia, and vice versa. This is often called
the “push down, pop up phenomenon” or the “balloon
effect.” Nonetheless, the U.S. government continues to
endorse aerial spraying of coca and poppies as a strategy
for disrupting the production of cocaine and heroin.8
precursor chemicals: Substances required for the
production of illicit drugs. Examples are acetic anhydride and pseudoephedrine for the production of
methamphetamine.
certification: The process by which the United States
has the option of withholding foreign aid to a country if
that country is judged to be noncompliant with U.S.
counter-drug efforts, by virtue of its participation in
major illicit drug production and/or trafficking.
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Part One
Monitoring Precursor Chemicals
The monitoring and control of precursor chemicals
and other substances used in the manufacture of illicit
drugs is also a significant method of attacking illicit
drug production before the drugs themselves enter the
market. With the exception of cannabis (the botanical
plant from which marijuana is obtained, see Chapter 10),
every illicit drug requires an alteration of the natural
product by specific chemicals before it reaches its
final consumable form. While these chemicals are
produced by legitimate companies, their involvement
in illicit drug trade is accomplished by being diverted
byRillegitimate chemical companies or by criminal
organizations.
I DEA agents regularly monitor and track large shipments
C of precursor chemicals entering the United States.
In one program called “Operation Purple,” implemented
toA
reduce the illicit manufacture of cocaine in South
America,
the DEA monitors and tracks shipments of
R
potassium permanganate, the chemical oxidizer of choice
D
for cocaine production.9 The DEA also monitors shipments
, of acetic anhydride, the most commonly used
chemical agent in heroin processing, and pseudoephedrine, the primary precursor chemical used in the
A
production
of methamphetamine. There is also an
attempt
to
assist
other countries in their monitoring and
D
control of precursor chemicals, but many nations either
R the capacity to determine whether the import or
lack
export
I of precursor chemicals is related to illicit drug production or else fail to meet goals for precursor-chemical
E
reduction
due to internal political pressures. The problem
is
complicated
by the fact that precursor chemicals
N
are often transshipped through third-party countries in an
N to disguise their purpose or destination.
attempt
E
Certification
A2
third method by which the United States attempts to
control
4 the production of illicit drugs in foreign countries
is through a certification process. Enacted by Congress in
7 certification is a process in which the U.S. govern1986,
ment
9 evaluates the cooperation of foreign countries in
counter-drug efforts. Each year, the president is required
toT
compile a list of countries that have been determined to
beSmajor illicit producing and/or drug transit countries.
Countries on this list are then divided into three categories: (1) those that are fully compliant with U.S.
counter-drug efforts (“certified”), (2) those not compliant
with U.S. efforts (“decertified”), and (3) those that are noncompliant but certified based on vital U.S. national interests. If a country is decertified, U.S. law requires that all
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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foreign aid be withheld until the president determines
whether the country should be certified. In addition, U.S.
representatives to multinational banks such as the World
Bank and the International Monetary Fund are required to
vote against any loans or grants to a decertified country.10
Interdiction
With respect to the attempt of the United States to prevent
drugs from being smuggled across our borders by denying
drug smugglers the use of air, land, and maritime routes, a
R
strategy known as interdiction, the challenges are enormous. Consider the difficulty of monitoring the entirety of
I
an international border with Mexico and Canada stretchC
ing nearly 7,000 miles. Each year, according to the U.S.
Customs and Border Protection Agency, 60 million peoA
ple enter the United States on more than 675,000 comR
mercial and private flights, while another six million arrive
by sea and 370 million by land. More than 116 million
D
land vehicles cross borders with Canada and Mexico.
,
More than 90,000 merchant and passenger ships dock at
U.S. ports, off-loading in excess of nine million shipping
containers and 400 million tons of cargo. More than
A
150,000 pleasure boats and other vessels visit U.S. coastal
towns on a regular basis. Any one of these planes, land
D
vehicles, or marine vessels could carry contraband cargo.11
R
An additional challenge comes from the continual
ingenuity of the drug smuggler in attempts to circumvent
I
standard interdiction controls. Over the years, lawE
enforcement agents have witnessed shipments of cocaine
N
fashioned into plastic statues of the Virgin Mary, packed
in hollow plaster shells shaped and painted to resemble
N
yams, implanted in a man’s thigh, and hidden beneath a
E
shipment of iced fish fillets. A shipment of boa constrictors from Colombia was once confiscated with their
intestines stuffed with condoms full of cocaine.12 In
2
1994, federal agents at Kennedy Airport in New York
noticed an emaciated and ailing sheepdog on a flight
4
from Bogota, Colombia. X-rays and surgery revealed that
7
five pounds of cocaine in ten rubber balloons had been
surgically implanted in the dog’s abdomen. New York
9
Police Department detectives later arrested a twenty-twoT
year-old man from New Jersey when he came to claim
the animal. The dog survived the surgery to remove the
S
condoms and was taken to the Canine Enforcement
Training Center in Virginia, where its handlers named it,
appropriately enough, “Cokie.”13
With tightened security after September 11, 2001, it
has become difficult for drug traffickers to use air cargo as
a method of smuggling drugs into the United States. In an
Chapter 6
A police officer collects heroin capsules after displaying
them during a news conference in Panama in 2004. A police
operation uncovered some fifteen kilograms of heroin, one
of the largest confiscations in Panama, from a group of five
Colombians.
extreme tactical response, traffickers have resorted to
using women from Colombia and other Andean nations
as well as other regions of the Caribbean to act as drug
“mules.” The female mules sometimes swallow as many
as fifty condoms filled with cocaine or heroin and then
board a flight on a commercial airline. They are often given a topical anesthetic to deaden the throat before ingesting the condoms and then are told to use laxatives to help
them “retrieve” the condoms after reaching their destination. Unfortunately, these condoms sometimes break and
leak into the stomach, causing a drug overdose and death.
Most of these “mules” are desperate for money and enter
the business willingly. There are, however, an increasing
number of women who are forced into the drug trade.
The traffickers have been known to kidnap a woman’s
interdiction: Efforts to prevent illicit drugs from being
transported across the U.S. border.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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TABLE 6.1
Drug Seizures by the Drug Enforcement Administration, 2006–2009
DRUG
2006
Cocaine (in kilograms)
69,826
Heroin (in kilograms)
Marijuana (in kilograms)
Methamphetamine (in kilograms)
Hallucinogens (in dosage units)
2007
2008
96,713
2009
49,823
49,339
805
625
599
642
322,438
356,472
660,969
666,120
1,711
1,086
1,540
1,703
4,606,277
5,636.305
9,199,693
2,954,251
Note: One kilogram equals 2.2 pounds. Drug amounts refer to amounts seized in DEA operations
in a given year. They do not necessarily reflect the quantities on a year-to-year basis that are
available on the illicit drug market.
R
I Information on Drug
Source: Drug Enforcement Administration (2010). The System to Retrieve
Evidence (STRIDE) Program. Washington, DC: Drug Enforcement Administration, U.S. DepartC
ment of Justice.
A
R
D access to concealed compartments in and/or
provide
children or other family members and threaten to kill the
under
hostages unless the woman successfully smuggles drugs
, seats, in both the center and overhead consoles,
14
into the United States. Table 6.1 lists recent DEA drug
seizures for cocaine, heroin, marijuana, methamphetamine, and hallucinogens.
Changes in airport security also have caused traffickers to scale back their smuggling of drugs through
airports and redirect their drug shipments over the
nation’s highways. Most of this smuggling occurs at
the U.S.–Mexican border, where drug traffickers use
various types of vehicles to conceal their contraband,
ranging from cars, commercial trucks, and tractor
trailers to minivans. These vehicles are fitted with hidden compartments, known as “traps,” where the drugs
are concealed. In some cases, complex sequences
of dashboard buttons and switches are required to
An X-ray view of a truck stopped at the Mexico-U.S. border
with immigrants concealed in the cargo area.
120
■
Part One
or behind air-conditioning vents. In 2002, U.S. Customs agents discovered at the southwest border in Arizona
A more than fourteen pounds of marijuana in a
hidden compartment located in the dash of a minivan.
D packages of marijuana were wrapped in cotton
The
and
R placed in a sealed rectangular mold made of a
honey and wax mixture. The marijuana escaped
I
detection
by drug-detecting dogs.15
E
N
Federal
Agencies Involved in
N
Interdiction
E primary federal agencies involved in drug interThe
diction include the DEA, the U.S. Customs and Border Protection Agency, the U.S. Coast Guard, and
2 U.S. military. Of these agencies, only the DEA
the
has
4 drug-law enforcement as its only responsibility.
Employing more than 4,000 officers with the authority
to7make arrests and carry firearms, the DEA investigates
9 major drug-law violators, enforces regulations
governing the manufacture and dispensing of conT substances, and performs various other functrolled
tions
S to prevent and control drug trafficking. DEA
agents also work overseas, where they engage in
undercover operations in foreign countries, work
in cooperation with foreign governments to apprehend major drug traffickers, help to train foreign law
enforcement officials, and collect intelligence about
general trends in drug trafficking, drug production
Drugs and Society: The Criminal Justice Perspective
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(illicit farming operations and laboratories), and criminal organizations operating in the illicit drug trade.
The U.S. Customs and Border Protection Agency,
operating under the Department of Homeland Security, is
responsible for curtailing the flow of illicit drugs across
America’s borders. More than 17,000 border patrol officers
screen incoming travelers, conveyances, and cargo at more
than 300 ports of entry across the United States, often
working with drug-detection dogs. The Customs and Border Protection Agency also employs a number of special
agents who are responsible for conducting investigations
into drug smuggling and money laundering schemes. The
agency maintains several specialized branches as well.
R
The Marine Branch, for example, is responsible for interdicting drugs in near-shore waters by stopping and searchI
ing incoming vessels that behave suspiciously, especially
C
small boats with large engines commonly referred to as
“go-fast boats.” The Air Branch is responsible for interdictA
ing suspicious aircraft, such as small low-flying aircraft
R
operating at night. Once a suspicious aircraft has been
detected, it is normally tracked and forced down by highD
speed chase planes and then searched. Customs inspectors
,
are not hampered by constitutional protections that typically limit the power of other law enforcement agencies;
they can search a person, vehicle, or container at ports of
entry or near to a U.S. shoreline without probable cause. A
The U.S. Coast Guard is the lead federal agency for
D
maritime drug interdiction and shares responsibility for
R
air interdiction with the U.S. Customs and Border Protection Agency. The Coast Guard is a key player in
I
combating the flow of illegal drugs to the United States
E
by denying smugglers the use of maritime routes in the
N
“transit zone,” a six-million-square-mile area including
the Caribbean, the Gulf of Mexico, and the Eastern
N
Pacific. Coast Guard ships can stop and board any marE
itime vessel operating within a twelve-mile radius of
U.S. shoreline. Like Customs inspectors, Coast Guard
personnel do not have to establish probable cause
2
before boarding and searching a vessel at sea.16
In recent years, Coast Guard agents have had to con4
tend with drug traffickers using semi-immersible subma7
rine-like boats as the means for transport. These semi-subs
are either self-propelled vessels or towed by other vessels,
9
and they are capable of carrying up to 12 metric tons of
T
cargo. As a response to the Coast Guard’s tactic of using
snipers in helicopters to shoot out engines on drug trafS
fickers’ speedboats (see Chapter 5), these new vessels are
especially designed with engines beneath water level. In
2008, a major Coast Guard interdiction operation succeeded in the capture of one of these semi-subs off the
coast of Guatemala, and seized approximately seven metric
tons of Colombian cocaine.17
Chapter 6
Members of the U.S. Coast Guard law enforcement team
gather in Miami around more than 5,000 pounds of cocaine
seized from a Honduran fishing boat off the coast of Colombia.
The drugs were discovered hidden in compartments within
the fuel tank, and eight Colombians were arrested. The 110foot boat was later towed to Miami and confiscated.
A Colombian soldier stands next to a number of 33-foot-long
semi-submersible vessels captured off the coast of Colombia
in 2007. Because they leave very small wakes, the crude subs
are difficult to detect visually from the air or by radar.
Drugs and the Criminal Justice System
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Drugs… in Focus
A Forty-Year Chronology of Drug
Interdiction
Since the late 1960s, when the “war on drugs” was officially
declared, a number of significant events have occurred in
the area of illicit drug seizures and interceptions in the
United States. Here are some of the highlights:
• 1969: In September, Operational Intercept forces the
essential closure of the U.S.–Mexico border. Customs
Department personnel examine every vehicle crossing
the border from Mexico in a three-minute inspection.
The two-week operation brings economic havoc on
both sides of the border. As a result, Mexico agrees to
fight the marijuana trade more aggressively, but there is
little long-term impact on the smuggling of marijuana
into the United States.
• 1972: The French connection is severed. A joint
U.S.–French initiate carries out successful busts of Marseilles-based heroin organization, controlled by Corsican and U.S. criminal groups.
• 1979: Carlos Lehder, a key member of the Medellin
Cartel, initiates a new method of cocaine smuggling,
when he purchases Norman’s Cay in the Bahamas as a
refueling stopover for small planes transporting cocaine
from Colombia to the United States. A Bahamian
crackdown on Lehder’s operation in 1982 causes
Lehder to flee the island, though operations continue
for another year.
• 1984: DEA and Colombian police discover Transquilandia, a cocaine-processing laboratory controlled by
the Medellin Cartel, located deep in the Colombian
jungle. In a coordinated bust operation, fourteen laboratory complexes are destroyed, as well as seven airplanes and 13.8 metric tons of cocaine. Conservative
estimates of the assets seized or destroyed are set at
$1.2 billion.
• 1984: DEA and Mexican officials raid a large marijuana cultivation and processing complex in the Chihuahua desert, in what is termed the “Bust of the
Century.” Seven thousand workers are arrested, and
The U.S. military supports the drug interdiction
efforts of many federal and state drug enforcement
agencies by providing air and ground observation and
reconnaissance, environmental assessments, intelligence analysts and linguists, and transportation and
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Part One
5,000 to 10,000 tons of high-grade marijuana worth
$2.5 billion are found and destroyed.
• 1998: Operation Casablanca leads to the indictment of
three Mexican and four Venezuelan banks, as well as
the arrest of 167 individuals in the largest money-laundering probe in U.S. history.
R
• 2002: Two commandants of the Autodefensas Unidas
Ide Colombia (AUC) are arrested in an elaborate
cocaine-for-arms deal. Paramilitary weapons worth
C
$25 million were to be purchased by the group. Colombian officials claim that the AUC is responsible for 804
A
assassinations, 203 kidnappings, and 75 massacres with
507 victims, as well as their involvement with cocaine
R
trafficking and distribution.
D
• 2005: Operation Cali Exchange results in twenty-four
,indictments, eighteen arrests, and the seizure of more
than $7 million, more than 2,000 kilograms of cocaine,
and more than 500 pounds of marijuana in a raid on a
major drug-trafficking and money-laundering organizaA
tion operating in the United States, as well as Panama,
Colombia, the Dominican Republic, Brazil, and the
D
Bahamas.
R
• 2007: DEA and Coast Guard seize approximately
I19 metric tons of cocaine being smuggled aboard a
Panamanian motorboat. The lost revenue to drug trafE
fickers as a result of this raid is estimated to be approximately $300 million.
N
• 2008: Major drug-trafficker Eduardo Arellano-Felix is
N
apprehended in Tijuana, Mexico.
•E
2009: Project Coronado results in the arrest of 303 individuals in 19 states, all involved in the La Familia
cocaine and methamphetamine cartel with headquarters in the state of Michoacan, Mexico.
2
Sources:
4 Frontline—Public Broadcasting Service (2000). Thirty
years of Americas’s drug war: A chronology. In Huggins,
Laura
7 E. (Ed.), Drug war deadlock: The policy battle continues. Stanford, CA: Hoover Institute Press, Stanford University.
9
Information
courtesy of the Drug Enforcement Administration, U.S. Department of Justice, Washington, DC.
T
S
engineering support. Military training teams also teach
civilian law enforcement officers such skills as combat
lifesaving, surveillance techniques, and advanced and tactical military operations that can be used in counter-drug
operations. Military personnel can support counter-drug
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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efforts, but they cannot search or arrest drug traffickers.
Law enforcement agencies and the military both benefit
from this relationship. Police are able to use military
resources, and service members are able to practice
their military skills in real-world situations.
The U.S. military is also active in drug interdiction
by working with foreign militaries and law enforcement
agencies in many drug-producing countries. It provides
intelligence, strategic planning, and training for antidrug operations in several Latin American countries,
such as Colombia, Mexico, Peru, and Bolivia. A key element of the military’s anti-drug program in Latin America is its Tactical Analysis Teams (TATs), made up of a
R
small number of U.S. Special Forces and military intelligence personnel. These teams gather intelligence and
I
plan operations that are carried out by host nations and
C
DEA agents.
Critics have claimed that there are a number of
A
problems inherent in the use of TATs. First, TATs are
R
aiding and training troops of foreign militaries that have
documented records of human rights violations without
D
insisting on fundamental reforms in those countries.
,
A second problem with the use of TATs is that, in some
cases, U.S. military personnel actually may be training
future drug traffickers. In several Latin American counA
tries, such as Bolivia, most of the American-trained
army personnel are required to serve only one year in
D
the military. Upon release from the service, some of
R
these soldiers work for the drug traffickers, who pay substantial salaries, or become drug traffickers themselves,
I
after having learned skills useful in avoiding drug interE
diction by legitimate authorities.18
N
Technically speaking, the Posse Comitatus Act of
1878 forbids the military to be used as a law enforceN
ment agency within the borders of the United States.
E
The law was designed originally to bar federal troops
from policing southern states after the Civil War and to
protect Americans against abuses by their own military
2
by dictating that federal troops could not enter private
land or dwellings and could not detain or search civil4
ians. In 1988, Congress expanded the National Guard’s
7
role in drug interdiction and allowed the guard to be
actively involved in drug-law enforcement. In 2010,
9
President Obama ordered up to 1,200 additional
T
National Guard troops to be stationed in the Southwest,
joining a few hundred Guard members previously
S
assigned to help local law enforcement officials in
reducing drug smuggling along the U.S.-Mexico border.
How does the National Guard circumvent the
Posse Comitatus Act? The key to National Guard
involvement in drug operations is the word “federal” in
the language of the Posse Comitatus Act. Since 1912,
Chapter 6
the National Guard has had a two-tier mission to serve
both the state and federal governments. Guard units
involved in anti-drug operations typically work for the
state government under the supervision of a state governor. Therefore, while the soldiers’ salary and other benefits are paid by the federal government, it is argued that
they are not bound by the Posse Comitatus Act. Critics
claim, however, that the National Guard is a federal
agency and that when the guard is involved in drug-law
enforcement operations, it is violating federal law.19
Profiling and Drug-Law Enforcement
Over the years, drug-law enforcement agents have often
developed “drug courier profiles” to help them identify
potential drug smugglers. In United States v. Sokolow
(1989), the U.S. Supreme Court ruled that drug courier
profiles at airports could be used as a legitimate lawenforcement tool, the Fourth Amendment to the U.S.
Constitution notwithstanding. In this case, Andrew
Sokolow, a young African American male dressed in a
black jumpsuit with gold jewelry, purchased two airline
tickets with $1,200 in cash. Sokolow flew from Honolulu
to Miami, planning to return to Hawaii forty-eight hours
later. He also was traveling under a false name, did not
check any luggage, and appeared very nervous. Drug
agents him at the Honolulu airport and used a drugsniffing dog, which led them to 1,063 grams of cocaine
in his carry-on luggage. Chief Justice William H. Rehnquist stated, “While a trip from Honolulu to Miami,
standing alone, is not a cause for any sort of suspicion,
here there was more: Surely few residents of Honolulu
travel from that city for twenty hours to spend forty-eight
hours in Miami during the month of July.” In a sevento-two decision, the Court ruled that the drug courier
profile could provide a “reasonable basis” for officials to
suspect that a person is transporting drugs (Drugs ... in
Focus).
The most significant criticism of drug-courier profiling is that some law enforcement officers have created
their own profiles based solely on race, ethnicity, or
national origin rather than on the behavior of an individual, a practice that has become known as racial profiling.
In the late 1990s, racial profiling became a major topic of
controversy. National and local media reports often proclaimed that racial profiling was a significant social
racial profiling: A practice of arresting or detaining
an individual for possible drug violations, based on
race, ethnicity, or national origin rather than on the
individual’s behavior.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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Drugs… in Focus
Drug Smuggler Profiles
Profile for Commercial Airline Smuggling
1. Arriving from an identified source country
2. Traveling alone
3. Traveling by an unusual itinerary, such as a rapid turnaround time
4. Carrying little luggage or a large-quantity suitcase
5. Purchasing airline tickets with cash
6. Displaying unusual nervousness
7. Passenger tries to avoid questioning
8. Passenger makes contradictory statements during
questioning
Profile for Automobile Smuggling
1. Unusually wide tires
2. Rear of vehicle visibly weighted down
3. Welding marks along edges of vehicle
4. Accumulation of trash inside vehicle that suggests long
stretches without stopping
5. Lack of vehicle registration
6. Spare tire in back seat
7. Driver displaying unusual nervousness
8. Signs of drug use
9. Conflicting or inconsistent stories concerning destination among the driver and passengers
Profile for Maritime Smuggling
1. No fishing gear or nets visible on fishing vessel
2. Crew does not wave back to passing law-enforcement
vessel or aircraft
3. Erratic course change when sighted by law-enforcement
vessel or aircraft
4. Not sailing in usual shipping lanes or fishing grounds
5. Hatches padlocked and extra fuel drums on deck
6. Vessel does not use running lights at night
problem, and national surveys confirmed that most
Americans agreed. In a 1999 Gallup Poll, more than half
the Americans polled believed that police actively
engaged in the practice of racial profiling, and 81 percent
said that they disapproved of the practice. When responses
124
■
Part One
7. Vessel does not respond to radio contact or claims
radio trouble
8. Vessel does not fly nationality flag
Profile for Small Aircraft Smuggling
1.R
Aircraft landing or flying after dark
2. Propellers, undersurface, and lower sides of aircraft pitI ted or scratched with grass stains or dirt from landing
Con grass fields or dirt roads
3. Aircraft parked far from airport offices or in a remote
Apart of the airfield
4.R
Van, truck, or motor home camper parked near aircraft
5. Factory-installed long-range fuel tanks
D
6. Aircraft windows covered by curtains, tape, or other
, material
7. Pilots or passengers reluctant to leave aircraft unattended when refueling or ground servicing
8.A
Pilots or passengers showing large amounts of cash
Dwhen paying for fuel or parts
9. Pilots or passengers reluctant to discuss points of origin
Ror point of destination
10.I Removal of passenger seats inside the aircraft
E for Postal Package Smuggling
Profile
1.N
Heavily taped packages
2. Packages that smell of masking agents such as coffee or
Nperfume
3.EFalse return addresses or zip codes
4. Packages originating from a source country
5. Packages sent from person to person
6.2Packages with handwritten labels
4
7
9
T
S
Sources: Langan, Mark T. (1996). Profiling postal packages, FBI
Law Enforcement Bulletin, 65 (2.3), pp. 17–21. Macdonald,
John M., and Kennedy, Jerry (1983). Criminal investigation of
drug offenses: The narc’s manual. Springfield, IL: Charles C.
Thomas. United States v. Sokolow, 490 U.S. 1 (1989).
to survey questions were broken down by race, 56 percent
of whites and 77 percent of African Americans believed
that racial profiling was a pervasive problem.20
One of the most common complaints about racial
profiling was the claim that police were stopping vehicles
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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simply because the race of the driver did not appear
to “match” the type of automobile he or she was driving. In a widely publicized case, Dr. Elmo Randolph, a
forty-two-year-old African American dentist, was stopped
more than fifty times over an eight-year span while driving a BMW car to his office near Newark. New Jersey
state troopers, believing that Dr. Randolph was “driving
the wrong car,” would pull Dr. Randolph over, check his
license, and ask him if he had any drugs or weapons in
his car. Randolph claims that he did not drive at excessive speeds and that he had never been issued a ticket.21
The experience of Dr. Randolph and other minority drivers in New Jersey led the New Jersey State Police
R
in 1999 to conduct a study on the race and ethnicity of
persons stopped by state troopers. They found that New
I
Jersey state troopers had indeed engaged in racial proC
filing along the New Jersey Turnpike. Although individuals of color comprised 13.5 percent of the New Jersey
A
Turnpike population, they represented 41 percent of
R
those stopped on the turnpike and 77 percent of those
searched. Studies in other U.S. states also have found
D
that police regularly engage in racial profiling.22
,
Police officers who defend racial profiling often
believe that African Americans, Latinos, Asians, and other minorities are more likely to carry drugs than their
A
white counterparts. Several studies, however, suggest that
African Americans and Latinos are no more likely than
D
whites to be in the possession of illicit drugs. One study
R
of motorists on an interstate highway in Maryland found
that 28 percent of African American drivers and passenI
gers who were searched were found with contraband,
E
compared with 29 percent of white drivers.23 In New
N
York in 1988 and 1989, 13 percent of whites were arrested for possessing illicit drugs compared with 11 percent
N
of African Americans and 11 percent of Latinos.24 A
E
study of drug interdiction at major U.S. airports found
that African Americans (6 percent) and Latinos (3 percent) were less likely to possess illicit contraband than
2
whites (7 percent). In 2003, under a Justice Department
directive, racial and ethnic profiling was officially banned
4
at all federal agencies with law-enforcement powers. The
7
only exception applies to investigations involving terror25
ism and national security.
9
Street-Level Drug-Law
Enforcement
T
S
reverse sting: A law-enforcement operation in which
an undercover agent posing as a drug dealer sells a
controlled substance, or an imitation of it, to a buyer.
As the third aspect of drug-law enforcement, street-level
drug-law enforcement is the responsibility of federal
agencies, state agencies, or local sheriffs’ and police
Chapter 6
departments. Increasingly, these different agencies are
joining forces and working together to form multijurisdictional drug task forces. Most of these task forces are
coalitions of five or more local and state agencies that
work closely with federal law enforcement agencies.
Multijurisdictional task forces allow agencies at different levels of government to share funds, personnel, and
intelligence and allow drug agents to track drug traffickers across many different jurisdictions. Nationwide, an
estimated 21 percent of local police departments and 40
percent of sheriffs’ offices have had one or more officers
assigned full time to a drug task force.26 Four major
drug-law enforcement operations currently used by police
departments to apprehend drug offenders are (1) the
reverse sting, (2) the controlled buy, (3) the undercover
buy, and (4) the “knock and talk.”
The reverse sting is a drug-law enforcement operation in which undercover agents pose as drug dealers
and sell a controlled substance or imitation version of
a controlled substance to buyers. Community policing
programs have made reverse stings popular because
such operations can be used as a method of “cleaning
up” a neighborhood. The reverse sting operation also
makes money for law enforcement because asset forfeiture laws allow agencies to keep at least part of the proceeds made in these operations. The reverse sting has
been criticized on the grounds that such operations
attack only the demand side of the drug problem. Drug
abusers are arrested, but the drug dealers or drug traffickers are not.
Undercover operations frequently involve the use
of an informant. In the controlled buy operation, an
undercover informant buys the drug under the supervision of the police. The informant may be a paid informant or a person who has been convinced by agents to
“roll over” on other traffickers because they themselves
have been charged with the possession or trafficking of
an illicit drug. In the latter case, criminal charges
against the informant may be either reduced or dropped
for their participation in the operation. After agents
have gained confidence in the informant, the informant is allowed to set up a controlled buy. Before the
informant enters the dwelling in which the buy is to
take place, he or she is usually searched to ensure that
controlled buy: A law-enforcement operation in
which an undercover informant buys an illicit drug
under the supervision of the police.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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there are no drugs on his or her person before conducting the buy. After the buy has been made, the informant is again searched and asked to turn over the drugs
bought in the transaction. To protect the identity of the
informant, arrests are usually not made at the time of
the buy. Warrants are obtained and later executed within ten days.
There are two types of undercover buy operations: (1) the buy-bust and (2) the buy-walk. During
a buy-bust operation, an undercover agent makes a
buy, and immediately thereafter, the seller is arrested
for the drug sale. During a buy-bust, an undercover
agent sets up a drug deal for a specified time and
location. A cover team monitors the transaction via
surveillance equipment, which is either hidden on
the agent or in the room. After a “bust signal” is given by the undercover agent, a cover team rapidly
moves in to make the arrest. Generally, the undercover agent is also “arrested” to protect his or her
identity.
In a buy-walk operation, an undercover agent buys
drugs but does not arrest the dealer at the time of the
deal. The drug deal is used to obtain a warrant for the
dealer that is served at a later time. The advantage of
this operation is that it protects the identity of the
undercover agent while at the same time ensuring his
or her immediate safety during the time of the operation. Buy-walk operations are often used when a drug
undercover buy: A law-enforcement operation in
which an undercover law-enforcement agent buys an
illicit drug in order to arrest the drug seller. The two
types are the buy-bust and the buy-walk.
knock and talk: A law-enforcement operation in
which agents ask for permission to search a residence
for illicit drugs after asking the suspect whether anyone
in the residence has been engaged in drug production or dealing.
consent search: A procedure in which law-enforcement
agents ask and receive permission from a suspect to
inspect a residence or vehicle for illicit drugs.
search warrant: A court-ordered document providing law-enforcement agents the right to search a residence or vehicle for illicit drugs.
asset forfeiture: A process used in drug-law enforcement in which cash, automobiles, homes, and other
property are seized if these items have been acquired
or used as a result of criminal activity.
RICO statute: The Racketeer Influenced and Corrupt
Organization (RICO) statute, pertaining to the prevention of criminal infiltration of legitimate businesses. It
was enacted as a section of the Organized Crime
Control Act of 1970.
126
■
Part One
deal takes place at the residence of a drug dealer and
officer safety is a concern.
The knock and talk is an operation that is used
when officials receive information that an individual
is dealing drugs but do not have probable cause to
seek a search warrant. In this case, agents arrive at a
suspect’s residence, knock on the door, identify themselves as police officers, and ask permission to enter
the residence. Once inside, agents ask the suspect if
any one in the residence is producing or dealing
drugs. After the suspect responds to the allegations,
agents ask for permission to search the residence for
illicit drugs.
R The element of surprise obviously is an important
factor in the success of the knock and talk. If there has
I
been no prior warning, suspects do not expect lawC
enforcement
officers to knock on their door and confront
them
with
an allegation. To “confuse” suspects,
A
agents often make misleading allegations. To find eviR against a marijuana dealer, agents may state
dence
that
D they believe the suspect is producing methamphetamine at his residence. Knowing that such
,
charges
are ridiculous, even though they are dealing
in marijuana, suspects usually allow a consent search.
Agents state that approximately 75 to 85 percent of
A dealers waive their constitutional right to privacy
drug
and
D consent to a search. When later asked why they
consent to such a search, dealers often state, “I
R
thought I would have been in worse trouble if I didn’t
letI you search” or “I didn’t know I had the right to
refuse.” Once evidence of illicit drug trafficking is
E
found, agents typically make an arrest or return with a
N warrant.27
search
N
Asset
Forfeiture and the
E
RICO Statute
Asset forfeiture refers to the seizure by the government
of2cash, cars, homes, and other property that the government
4 claims are the result of criminal activity. Authorization for this strategy in law enforcement was created
as7part of the Organized Crime Control Act of 1970.
A 9section of this legislation, known as the Racketeer
Influenced and Corrupt Organization (RICO) statute
(orTsimply, RICO), pertained to the prevention of criminal
S infiltration of legitimate businesses. It was a
response to the practice of funneling (“laundering”)
profits from criminal activity, whether drug-related or
not, into financial dealings of an unrelated commercial
enterprise. This had been for many years a popular
strategy of criminal organizations to circumvent detection by law enforcement (Chapter 5).
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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TABLE 6.2
DEA asset seizures in 2009
6.1
Quick Concept Check
TYPE
OF ASSET
Understanding Drug-Law
Enforcement Operations
NUMBER
OF SEIZURES
VALUE
10,027
$768,310,882
Cash
Weapons
Check your understanding of drug-law enforcement
operations by matching the descriptions on the left with
the types of operations on the right.
Real property
Vehicles
Vessels
1. An undercover informant makes a drug buy
under the supervision
of the police.
a. the knock and talk
2. Undercover agents pose
as drug dealers and sell
a controlled substance
or imitation controlled
substance to buyers.
d. the reverse sting
b. the undercover buy
c. the controlled buy
e. interdiction and asset
forfeiture
f. crop eradication
3. A police officer, posing
as a drug abuser, buys
illicit drugs from a suspected drug dealer. The
dealer is later arrested
for drug trafficking.
Aircraft
R
I
C
A
R
D
,
A
D
R
I
E
N
N
E
4. Agents arrive at a suspect’s residence, identify
themselves as police officers, and ask permission
to enter the residence.
5. Colombian drug control officials spray herbicides on fields of coca.
6. Drug smugglers are
apprehended outside
Miami and their “gofast” boat is confiscated
by authorities.
2
4
7
The principle of asset forfeiture, known as the
9
relation-back doctrine, is that “because the governT
ment’s right to illicit proceeds relates back to the time
they are generated, anything acquired through the
S
Answers: 1. c
2. d
3. b
4. a
5. f
6. e
expenditure of those proceeds also belongs to the government.”28 In 1978, asset forfeiture was authorized to
be used in the federal prosecution of controlled-substance
trafficking cases. Since then, many states have passed
legislation authorizing their own asset forfeiture procedures when dealing with the violation of state drug laws.
Chapter 6
Other
Total
1,169
949,381
603
647,348,701
6,565
135,839,293
141
9,883,134
33
20,111,143
141
229,456,370
18,679
1,811,898,904
Note: Total assets seized in 2005 and 2006 have values of
$496,000,000 and $507,000,000, respectively.
Source: Information courtesy of the Drug Enforcement Administration, U.S. Department of Justice.
Forfeiture is particularly useful in drug-law enforcement
because it reduces the financial incentive to reap the
often enormous profits that are involved in drug trafficking and disrupts a drug-trafficking organization by seizing any vehicles, boats, planes, or property used to
transport or produce illicit drugs. As shown in Table 6.2,
the DEA made more than 18,000 domestic seizures of
nondrug property, valued at approximately $1.8 million
in 2009 as a result of drug investigations. Currently, the
U.S. Marshalls Service is assigned to the management
and care of more than $1.7 billion worth of property
seized through the federal asset forfeiture program.29
There are two types of forfeitures: criminal (in personam) forfeitures and civil (in rem) forfeitures. The distinction between criminal and civil forfeitures is based
upon whether the penalty pertains to a person or a
thing. Criminal forfeitures are primarily against a specific person and result after a conviction for a crime to
which the forfeited property is related. This can occur
upon showing during the course of sentencing or pleabargaining that the property is contraband (illegally
obtained through the profit of a crime). Such criminal
forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law,
and the forfeiture case and the criminal case are both
tried together. Forfeiture must be included in the
relation-back doctrine: The principle behind the
authority for asset forfeiture, in which the government
asserts that it has the right to illicit proceeds relating
back to the time they were generated.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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indictment of the defendant, which means that the
grand jury must find a basis for the forfeiture as well as
punishment for the criminal offense itself.
Civil forfeitures, on the other hand, are in rem actions
based upon the unlawful use of property, irrespective of
its owner’s culpability. Traditionally, civil forfeiture has
operated on the premise that the property itself is the
guilty party, and the fact that the forfeiture of the property affects an individual’s property rights is not considered. With civil forfeiture, the offender does not need
to be convicted or even charged with a crime because
it is contended that the property “itself” is guilty. The
property owner’s guilt or innocence is therefore irrelevant, and civil forfeiture proceedings can be pursued
independently or in lieu of a criminal trial.
Forfeitures have existed for thousands of years and
are traceable to biblical and pre-Judeo-Christian times.
Early English law recognized a kind of forfeiture known
as “deodand,” which required forfeiture of the instrument of a person’s death. The principle was based on the
legal fiction that the instrument causing death was
deemed “guilty property” capable of doing further harm.
For example, if a domesticated animal killed a person, it
would be forfeited, usually to the King, whether or not
its owner was responsible. The original purpose for creating this legal fiction was to satisfy the superstition that
a dead person would not lie in tranquility unless the “evil
property” was confiscated and viewed by the deceased’s
family as the object of their retribution. The King often
used forfeiture to enhance royal revenues, and this corrupt practice led to the statutory abolishment of deodand in England in 1846.30
The Confiscation Act of 1862, passed during the Civil
War, authorized the use of in rem civil procedures against
southern rebels and their sympathizers who possessed
property in the North. The law stated that the properties
seized were to be used for supporting the Union cause in
waging its war. The federal government at the time was
responding to a Confederate law that confiscated the
southern properties belonging to supporters of the Union.
It was not until the late twentieth century, however, that
civil forfeiture was “rediscovered” to address a pressing
social concern: the war on drugs. The justification for
extending forfeiture into the realm of illicit drug control
was one of deterrence. Legislators believed that imprisonment of drug traffickers often was treated by criminal
organizations as a mere cost of business, and therefore,
forfeiture could be used to attempt to reduce their profits,
in effect striking where it would really hurt.
The 1970 Comprehensive Drug Abuse Prevention
and Control Act provided, in part, for the forfeiture of
property used in connection with controlled substances.
128
■
Part One
In 1978, the law was expanded to include all profits from
drug trafficking and all assets purchased with drug profits as items subject to forfeiture. The scope of the statute
was further amended in 1984 to include all property that
was used, or intended to be used, in a drug offense, and
every drug offense, from simple possession to mass distribution, could trigger forfeiture. In recent years, civil
asset forfeiture has become the weapon of choice in
combating illicit drug trafficking and distribution in
America. In the 1990s, a series of U.S. Supreme Court
decisions established guidelines for its implementation.
Law-enforcement officers argue that civil forfeiture
allows them to combat drug crime by attacking the ecoR viability of drug-trafficking organizations while at
nomic
the same time raising money for future law enforcement
I
operations. Critics argue that forfeiture laws distort lawC
enforcement
priorities. In many states, local, state, and
federal
agencies
have pooled personnel and resources to
A
form multiagency drug task forces. Many of these task
R finance themselves, at least in part, through asset
forces
forfeiture.
By allowing such agencies to rely on asset forD
feiture as a source of revenue, critics claim, the law
,
enforcement
priorities are shifted from efforts toward
crime control to “funding raids” (see Portrait).
While it is claimed that forfeiture promotes the
A
accomplishment
of law-enforcement goals, it turns out
that
D 80 percent of seizures are unaccompanied by any
criminal prosecution.31 This may stem from the fact
R
that, for many law enforcement agencies, civil forfeiture
creates
a temptation to depart from legitimate lawI
enforcement goals in order to maximize funding. Some
E
police departments now prefer to arrest drug buyers
N than drug sellers by employing a “reverse sting,”
rather
the
Nchief attraction being the confiscation of a buyer’s
cash rather than a seller’s drugs.
E Supporters of asset forfeiture claim that the lack of
criminal prosecutions in such a large number of forfeiture cases is attributed to the need for police and pros2 attorneys to offer a substantial bargaining chip
ecuting
in4plea-bargaining negotiations. Defendants may be
given the choice of not fighting the civil forfeiture pro7 in exchange for avoiding criminal prosecution.
cedure
This
9 type of arrangement would benefit both the prosecutor and the prosecuted. The government would be
T to “punish” defendants in legally weak cases that
able
involve
S inadmissible or insufficient evidence, and the
defendant would escape the monetary and social costs
of a criminal conviction. Advocates of forfeiture also
argue that forfeiture is an effective tool because it
deters criminal activity, saves taxpayers’ money by
allowing law enforcement to self-fund many of their
operations, and increases police officer morale.32
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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PORTRAIT
Policing for Profit—The Death of Donald Scott
On October 2, 1992, a task force composed of Los Angeles County sheriff’s
deputies, DEA agents, and U.S. Park
Service officers executed a search warrant on California millionaire Donald
Scott’s 250-acre estate. The search
warrant was based on information
from an informant that marijuana was
being grown on Scott’s land.
The task force arrived at Scott’s
house around 9:00 a.m. and broke
down the door. Scott’s wife claimed
that the deputies pushed her from the
kitchen into the living room, and
then she screamed, “Don’t shoot
me. Don’t kill me.” The noise awakened Donald Scott from his sleep,
and he came down the stairs holding
a .38 caliber snub-nosed revolver over
his head. When he pointed it in the
direction of the deputies, they shot
and killed him. When Scott’s wife
ran to the body, drug agents “hustled
her out of the house.” Recorded
phone conversations also show that
while Scott lay dead or dying in a
pool of blood, police used his phone
to make calls and answered a call
from one of Scott’s neighbors, telling
the neighbor that Scott was “busy.” A
search of Scott’s ranch did not find
one trace of marijuana or any other
illicit drug.
The Ventura County District
Attorney’s Office concluded that the
Sheriff’s Department was motivated,
at least in part, by a desire to seize
and forfeit Scott’s land for the government. Deputies and DEA agents
knew that Scott’s estate was an
extremely valuable
R piece of real
estate, and most of the proceeds from
the sale of theIproperty would go to
the Sheriff’s Department. In fact,
C
sheriff’s deputies had several documents on theirA
desks that estimated
the amount of money the department
R sale of Scott’s land.
could get for the
The investigation also showed that
D
the search warrant that was used in
the drug raid was
, not supported by
probable cause. The District Attorney’s office recommended that, in the
future, when preparing search warrant
A
affidavits, law-enforcement officers
should not compromise
their objectivD
ity based upon forfeiture concerns.
R a given search
Regardless of whether
warrant may result in the forfeiture of
I
valuable property, officers should
ensure that there
E is adequate probable
cause.
N
N
E
Drugs and the Correctional
System
2
4
Most inmates in U.S. prisons and jails are serving time
7
for drug-law violations (Table 6.3). Drug offenders serving time in federal prisons have more than tripled from
9
16 percent of the total prisoner population in 1970 to 51
T
percent in 2009, an increase generated by an intensified
effort to step up drug-law enforcement as well as the
S
prosecution and punishment of drug offenders (see
Chapter 2). In 2009, approximately 1.7 million arrests
were made in this category, accounting for about one in
eight of the total number. It is estimated that in 2009,
a drug arrest was made every 19 seconds. More than
82 percent had been for drug possession.33
Chapter 6
Not surprisingly, Scott’s death generated several lawsuits. Scott’s widow
and four of his children filed a $100
million wrongful death suit against
the county and the federal government. After eight years, attorneys for
Los Angeles County and the federal
government finally agreed to award
the family $5 million in return for
dropping the wrongful death lawsuit.
The Sheriff’s Department still
maintains that its deputies did nothing wrong and the sheriff himself
sued Ventura County’s District Attorney for slander and defamation. A
state appeals court declared that the
district attorney was within his First
Amendment rights when he criticized the Sheriff’s Department. The
court ordered the sheriff to pay the
district attorney $50,000 in legal fees.
The sheriff declared bankruptcy, and
no payments were ever made.
Sources: Bradbury, Michael D. (1993).
Report on the death of Donald Scott.
Office of the District Attorney, Ventura,
CA, March 30, 1993. Ciotti, Paul
(2000). Ranch-coveting officials settle
for killing owner, WorldNetDaily.com,
January 23, 2000.
Federal and State Penalties for Drug
Trafficking
Current federal law under the Controlled Substance Act
of 1970 and subsequently revised in 1986, 1988, and
2010 (Chapters 1 and 3) defines drug trafficking as the
unauthorized manufacture, distribution by sale or gift,
or possession with intent to distribute of any controlled
substance. The severity of the penalties has varied
according to the schedule of the controlled substance
involved, with Schedule I violations being the most
drug trafficking: The unauthorized manufacture of
any controlled substance, its distribution by sale or
gift, or possession of such a substance with intent to
distribute it.
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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TABLE 6.3
Inmates serving time in federal prison by type
of offense
Drug offense
100,627
51.3%
Weapons, explosives, arson
29,740
15.2%
Immigration violation
22,327
11.4%
Robbery
8,631
4.4%
Extortion, fraud, bribery
9,997
5.1%
Burglary, larceny, property
offense
6,868
3.5%
Homicide, aggravated
assault, kidnapping
5,450
2.8%
Sex offense
8,430
4.3%
Banking and insurance,
counterfeiting, embezzlement
840
0.4%
Violations related to courts
and corrections
661
0.3%
Continuing criminal enterprise
532
0.3%
94
,.01%
National security violation
Miscellaneous
1,970
1.0%
Note: Percentages reflect the number of inmates arrested for
a type of offense within the total federal inmate population
of 211,014.
Source: Federal Bureau of Prisons (2010, July). Quick facts
about the Bureau of Prisons. Washington, DC: Federal Bureau
of Prisons, U.S. Department of Justice.
severely punished and Schedule V violations being the
least (Table 6.4). As a result of the Anti-Drug-Abuse Acts
of 1986 and 1988, a number of special circumstances
also are considered in arriving at the penalty imposed:
Penalties are doubled for first-offense trafficking of
Schedule I or II controlled substances if death or
bodily injury results from the use of such substances.
Penalties for the sale of drugs by a person over twenty-one years of age to someone under the age of
simple possession: Having on one’s person any illicit or
nonprescribed controlled substance for one’s own use.
drug paraphernalia: Products that are considered to
be used to administer, prepare, package, or store illicit
drugs.
mandatory minimum sentencing: A policy that
requires a judge to impose a fixed minimal term in prison
for individuals convicted of certain crimes, regardless of
the individual’s role in the crime or other mitigating circumstances.
130
■
Part One
eighteen are increased to up to double those
imposed for sale to an adult.
Penalties for the sale of drugs within 1,000 feet of
an elementary or secondary school are increased to
up to double those imposed when the sale is made
elsewhere.
Fines for companies or business associations are generally 2.5 times greater than for individuals. In either
case, penalties include the forfeiture of cars, boats, or
planes that have been used in the illegal conveyance
of controlled substances.
If a family is living in public housing, the entire famican be evicted if a family member is convicted of
Rly
criminal activity, including drug trafficking, on or
I near the public-housing premises.
C Federal penalties for simple possession, defined as
having
A on one’s person any illegal or nonprescribed
controlled substance in any of the five schedules for
R own use, are much simpler. First-offense violators
one’s
face
D a maximum of one-year imprisonment and a fine of
between $1,000 and $5,000. Second-offense violators
, a minimum of fifteen days up to a maximum of two
face
years and a fine of up to $10,000.34
Federal penalties set the standard for the punishment
ofA
drug offenses in the United States, but most drugrelated
D offenses are prosecuted at the state rather than the
federal level, and state regulations for simple possession
R
and drug trafficking can vary widely. In cases of simple
possession
of small amounts of marijuana, some U.S.
I
states might be more lenient (see Chapter 10), whereas in
E
cases of heroin possession some states might be more
N (see Chapter 7). Certain aspects of drug-taking
stringent
behavior,
such as the day-to-day regulation of alcohol
N
sales and distribution, are regulated primarily by state and
E municipalities, unless interstate commerce is
local
involved. States and local municipalities have also taken
on regulatory authority with regard to drug parapherna2products whose predominant use is to administer, prelia,
pare,
4 package, or store illicit drugs. Nearly all U.S. states
have statutes making it unlawful to sell these items to
7 unless they are accompanied by a parent or legal
minors,
guardian.
In addition, the importation, exportation, and
9
advertising of drug paraphernalia are prohibited.35
T
Mandatory
Minimum Sentencing
S
For more than thirty years, mandatory minimum sentencing for drug offenders was a fact of life. Arguably, no
other legislative policy had contributed more to the
increase in the number of drug offenders in U.S. prisons
than the policy of mandatory minimum sentencing.
Essentially, mandatory minimum sentencing required
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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TABLE 6.4
Federal Trafficking Penalties—Controlled Substances Other than Marijuana
DRUG/SCHEDULE
QUANTITY
PENALTIES
QUANTITY
PENALTIES
Powder Cocaine
(Schedule II)
500–4999 gms mixture*
5 kgs or more mixture
Crack Cocaine
(Schedule II)
28–279 gms mixture*
First Offense:
Not less than 5 yrs,
and not more than
40 yrs. If death or
serious injury, not
less than 20 yrs. or
more than life. Fine
of not more than
$2 million if an
individual, $5 million
if not an individual**
First Offense:
Not less than 10 yrs,
and not more than
life. If death or serious
injury, not less than
20 yrs. or more than
life. Fine of not more
than $4 million if an
individual, $10 million if
not an individual.
Fentanyl (Schedule II)
40–399 gms mixture
Fentanyl Analogue
(Schedule I)
10–99 gms mixture
Heroin (Schedule I)
100–999 gms mixture
LSD (Schedule I)
1–9 gms mixture
Methamphetamine
(Schedule II)
5–49 gms pure or
50–499 gms mixture
PCP (Schedule II)
10–19 gms pure or
100–999 gms mixture
R
Second Offense:
I than 10 yrs,
Not less
and not more than
life. If C
death or serious
injury, life
A
imprisonment. Fine of
not more than
R
$4 million if an individual,
D$10 million if
not an individual
,
50 gms or more mixture
400 gms or more mixture
100 gms or more mixture
1 kg or more mixture
10 gms or more mixture
50 gms or more pure or
500 gms or more mixture
100 gm or more pure or
1 kg or more mixture
Second Offense Not
less than 20 yrs, and
not more than life. If
death or serious injury,
life imprisonment. Fine
of not more than $8
million if an individual,
$20 Million if not an
individual.
2 or More Prior
Offenses: Life
imprisonment
PENALTIES
Other Schedule I & II
drugs (and any drug
product containing
Gamma Hydroxybutyric
Acid)
Any amount
Flunitrazepam
(Schedule IV)
1 gm or more
Other Schedule
III drugs
Any amount
Flunitrazepam
(Schedule IV)
30 to 999 mgs
All other Schedule IV
drugs
Any amount
Flunitrazepam
(Schedule)
Less than 30 mgs
All Schedule V drugs
Any amount
A
D
R Offense: Not more than 30 yrs. If death or serious injury,
Second
not less than life. Fine of $2 million if an individual, $10 million if not
I
an individual
E
First Offense: Not more than 5 yrs. Fine of not more than $250,000 if an
individual,
N $1 million if not an individual.
Second Offense: Not more than 10 yrs. Fine of not more than $500,000 if
N
an individual, $2 million if not an individual
First E
Offense: Not more than 3 yrs. Fine of not more than $250,000 if an
First Offense: Not more than 20 yrs. If death or serious injury, not less than 20
yrs, or more than life. Fine of $1 million if an individual, $5 million if not an
individual.
individual, $1 million if not an individual.
Second Offense: Not more than of 6 yrs. Fine of not more than $500,000 if
an individual, $2 million if not an individual.
2
4
Second
7 Offense: Not more than of 2 yrs. Fine of not more than $200,000 if
an individual, $500,000 if not an individual.
9
Tpossessing quantities of powder
*Under the Fair Sentencing Act of 2010, equivalent penalties for
cocaine or crack cocaine have been changed from a 100-to-1 ratio to a 18-to-1 ratio. In addiS
tion, the five-yr. mandatory sentence for simple possession of crack cocaine has been eliminated.
First Offense: Not more than 1 yr. Fine of not more than $100,000 if an individual, $250,000 if not an individual.
**Five-year mandatory sentence for simple possession of crack cocaine has been eliminated.
Note: Trafficking penalties distinguish between Schedule I drugs excluding marijuana and marijuana itself (Tables 6.4 and 6.5).
Sources: Associated Press (2010, August 4). Obama signs new cocaine bill. Drug Enforcement
Administration, U.S. Department of Justice.
Chapter 6
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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TABLE 6.5
Federal Trafficking Penalties—Marijuana
DRUG
QUANTITY
1ST OFFENSE
2ND OFFENSE
Marijuana
1,000 kg or more
mixture; or 1,000 or
more plants
• Not less than 10 yrs, not more than life
• If death or serious injury, not less than
20 yrs, not more than life
• Fine of not more than $4 million if an
individual, $10 million if other than an
individual
• Not less than 20 yrs, not more
than life
• If death or serious injury, mandatory
life
• Fine of not more than $8 million
if an individual, $20 million if other
than an individual
Marijuana
100 kg to 999 kg
mixture; or 100 to
999 plants
• Not less than 5 yrs, not more than
40 yrs
• If death or serious injury, not less than
20 yrs, not more than life
• Fine of not more than $2 million if an
individual, $5 million if other than an
individual
• Not less than 10 yrs, not more
than life
• If death or serious injury, mandatory
life
• Fine of not more than $4 million if
an individual, $10 million if other
than an individual
more than 10 kgs
hashish; 50 to 99 kg
mixture
more than 1 kg of
hashish oil; 50 to 99
plants
•
•
• Not more than 30 yrs
• If death or serious injury, mandatory
life
• Fine of $2 million if an individual,
$10 million if other than individual
Marijuana
1 to 49 plants; less
than 50 kg mixture
Hashish
10 kg or less
• Not more than 5 yrs
• Fine of not more than $250,000, $1 million
if other than individual
Hashish Oil
1 kg or less
Marijuana
•
R
I
C
A
Not more than 20 yrs
If death or serious injury, not
R less than
20 yrs, not more than life
D $5 million
Fine of $1 million if an individual,
if other than an individual
,
a judge to impose a fixed minimal term in prison for
individuals convicted of certain crimes, regardless of the
individual’s role in the crime or other mitigating circumstances. Guidelines for sentences were based on
the type of drug, the weight of a drug, and the number
of prior convictions, and offenders were required to
serve their entire sentence (or in some states a minimum of 85 percent) without parole. Under federal law,
for example, anyone convicted of selling 500 grams of
powder cocaine received a minimum prison sentence of
five years. A judge could issue a sentence shorter than
the mandatory minimum only if the defendant provided
“substantial assistance” or cooperation in the prosecution of another offender. This means that if the defendant had implicated someone else in a crime (rightly or
wrongly), he or she could possibly escape a mandatory
sentence. Even then, however, the prosecutor, not the
judge, had the power to decide whether this “assistance”
was valuable enough to warrant a reduction in sentence.
Proponents of mandatory sentencing have believed
that the policy is an effective deterrent to drug use and
drug trafficking because it enhances awareness of the
132
■
Part One
• Not more than 10 yrs
• Fine of $500,000 if an individual,
$2 million if other than individual
A
D
R
I
consequences of breaking the law and keeps drug
E
offenders off the streets. Supporters of tough sentences
forNdrug crimes have claimed that the “drug epidemic”
has
Nhad a devastating effect on many communities, and
the law is needed to protect these vulnerable communiE by keeping drug offenders in prison. Mandatory
ties
sentences also have made the task of judges easier by
allowing each offender to be sentenced equally under
2 law. Judges no longer have had to weigh conflicting
the
evidence
in the course of deciding how much time a
4
convicted offender would spend in jail or prison. In
7
addition,
mandatory sentences have aided prosecutors
and
9 police because such lengthy sentences tended to
persuade lower-level drug dealers to testify against
T
upper-level
ones (Drugs . . . in Focus).
S Critics of mandatory sentencing, however, have
maintained that such sentences are one of the principal
reasons that the U.S. prison population has grown so
rapidly since the 1980s. Mandatory minimum sentencing has, according to critics, filled our prisons with minor
players, such as drug abusers, rather than major drug traffickers. They argue that as federal and state governments
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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Drugs… in Focus
Penalties for Crack versus
Penalties for Cocaine in 2010:
Correcting an Injustice
In 2007, the United States Sentencing Commission,
the agency that establishes guidelines for federal prison
sentences, unanimously voted to lighten punishments
retroactively for some crimes related to crack cocaine possession. As a result, the stark disparity that had existed for
Under the 1986 Anti-Drug Abuse Act, the penalties for
Rmore than twenty years in penalties for powder cocaine
possession of crack (the smokable form of cocaine) were
crack cocaine was narrowed, and more than 19,000
much more severe than those for possession of cocaine
I and
prisoners became eligible for early release. As many as
itself (the powder form). A mandatory minimum prison
sentence of five years was imposed upon conviction of pos- C17,000 others incarcerated for a crack-related offense,
however, could not benefit from the change. These prissessing more than 500 grams of powder forms of cocaine,
whereas the possession of as little as 5 grams of crack can Aoners had been given the absolute minimum term in the
result in the same penalty. This became known as the 100- Rfirst place or were arrested with huge amounts of crack
cocaine.
to-1 penalty ratio. In 1988, the federal penalty for possession of more than 5 grams of cocaine powder was set at a D In 2010, the Fair Sentencing Act was signed into law,
narrowing the gap between penalties involving crack
minimum of one-year imprisonment; the penalty for pos, cocaine and powder cocaine. Under the new regulations,
sessing an equivalent amount of crack was set at a minithe amount of crack cocaine subject to the five year minimum of five years.
mum sentence was increased from 5 grams to 28. The forThis disparity, according to critics of this policy, had
resulted in far more African Americans in prison for five Amer 100-to-1 rule now would be the 18-to-1 rule. In
addition, the Sentencing Commission has been directed to
years or more than white drug offenders. Why? Statistics
Dreview and amend its guidelines to increase penalties for
showed that whites were more likely to snort or inject
cocaine, whereas African Americans were more likely to Rpersons convicted of using violence while trafficking in
illicit drugs.
smoke cocaine in its cheaper crack form. The differeI Sources: Hatsukami, Dorothy K., and Fischman, Marian W.
ntial effects of drug-law enforcement for the two forms
of cocaine were reflected in a drug offense inmate popE(1996). Crack cocaine and cocaine hydrochloride: Are the
ulation that was currently divided along racial lines. On
differences myth or reality? Journal of the American Medthe one hand, 90 percent of crack cocaine convictions
Nical Association, 276, 1580–1588. Stout, David (2007,
involved African Americans; on the other, nearly two12). Retroactively, panel reduces drug senNDecember
thirds of powder cocaine abusers in the United States
tences. New York Times, pp. A1, A31. Weinreb, Arthur (2010,
were white. Moreover, it was more common for offenses
August 4). Obama signs fair sentencing act into law.
relating to the possession of powder cocaine to be prose- Ehttp://news.suite101.com. Wren, Christopher S. (1997, July
cuted under state regulations, under which mandatory
22). Reno and top drug official urge smaller gap in cocaine
minimum sentences frequently did not apply.
sentences. The New York Times, pp. A1, A12.
continued to spend billions of dollars on prisons, they
neglected other social needs, such as drug-abuse prevention and education. It has not been uncommon for
several U.S. states to have faster-growing prison budgets
than drug-abuse education budgets, a particularly disturbing trend given that spending more money on treatment, education, and other social programs actually
could reduce the number of persons who abuse drugs
(see Chapter 17).36
In the last several years, laws regarding mandatory
sentencing have been modified or rescinded, largely
through the lobbying of such organizations as the
2
4
7 Families Against Mandatory Minimums (FAMM), the
9 U.S. Sentencing Commission, the American Psychological Association, the National Association of CrimiT nal Defense Lawyers, and the American Bar Association.
S All have endorsed and promoted the end of mandatory
sentencing. Since 1993, at least six U.S. states have
repealed or reformed their mandatory sentencing laws.
In Michigan, possession with intent to deliver more
than 650 grams of heroin or cocaine once carried a
mandatory life sentence with no chance of parole. This
law now has been changed to twenty years to life, with
the possibility of parole after fifteen years. In Mississippi,
Chapter
6 Drugs
theCharles
Criminal
Justice System
Drugs, Society
and Criminal
Justice,and
3E by Ken
F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
■
133
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sentencing laws passed in 1995 required drug offenders,
even those convicted of simple possession of a controlled substance, to serve 85 percent of their sentence,
no matter the circumstances of their incarceration; now
the maximum sentence has been reduced to less than
25 percent. As of 2009, judges in New York who had
previously had no discretion in sentencing now have
leeway in deciding whether a drug offender should be
sent to a substance-abuse treatment center instead of
prison. Thousands of inmates convicted of nonviolent
drug offenses in New York can now apply to have their
sentences reduced or set aside. At the federal level, a
major U.S. Supreme Court decision in 2007 ruled that
federal district judges had broad discretion to impose
what would be, in their judgment, reasonable sentences
in criminal proceedings, even if federal guidelines were
more stringent.37
Other U.S. states are beginning a policy shift from
punishment in any form to the option of treatment for
drug offenders. California state law now permits judges
to impose a sentence of treatment rather than imprisonment for many first-time drug possession offenses. A
drug conviction is then removed from the offender’s
record if he or she completes a treatment program. Arizona has established a similar program where individuals convicted of drug possession are placed on probation
and assigned to drug treatment rather than prison.38
Drug Courts
Drug courts are specialized courts designed to handle
adult, nonviolent offenders with substance abuse problems, incorporating an intensely supervised drug treatment program as an alternative to standard sentencing.
Several of the characteristics of drug courts include early
identification and placement of eligible participants,
drug treatment with clearly defined rules and goals, a
nonadversarial approach, a monitoring of abstinence,
judicial involvement and interaction with the participants, and a team approach in which judges, defense
attorneys, prosecutors, probation officers, and treatment
counselors coordinate their efforts. Those offenders who
complete the program successfully may have their
charges dropped or sentences revoked, whereas unsuccessful participants are returned to the regular court system and face possible imprisonment. Since the first drug
drug courts: Specialized court systems that handle
adult, nonviolent offenders of drug laws, incorporating
a supervised drug treatment program as an alternative to standard criminal sentencing.
134
■
Part One
R
I
C
A
R began operation in Florida in 1989, more than
court
2,000
D drug courts have come into operation across the
United States.39
, The first step in a drug court program begins with
The court system in the United States is greatly burdened
with the large number of cases that involve drug-law violations. The establishment of drug courts is an effort to help
ease this burden.
defense attorneys, probation officers, or prosecutors
referring a potential candidate to the drug court itself.
AA
probation officer then screens candidates for eligibility.
Candidates
must be judged (using a screening instruD
ment) to be serious drug abusers, cannot be on parole,
Rcannot have a prior serious or violent felony convicand
tion.
I When he or she agrees to enter the program, the
candidate waives his or her right to a jury and agrees to
E
enter a treatment program for a year, during which he
orN
she is subject to random drug tests. Participants are
supervised by a probation officer to ensure that they
N
adhere to program rules.
E Numerous studies have shown that drug court programs are successful. First of all, they decrease the rate
of criminal recidivism (repeated arrests). In a sample of
2 drug-court graduates nationwide within one
17,000
year
4 of graduating from the program, only 16 percent
had been rearrested and charged with a felony offense,
7 was approximately one-third the level observed
which
in9drug offenders not participating in a drug court. Second, they are cost effective. Approximately $250
T in incarceration costs have been saved each
million
year
S in New York State alone by diverting 18,000 nonviolent drug offenders into treatment. Third, drug courts
increase the length of time an individual remains in
treatment. The coercive power of the criminal justice
system with respect to getting into treatment and staying in treatment is dramatic. Ordinarily, between 40
percent and 80 percent of drug abusers drop out of
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
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treatment within ninety days, and between 80 percent
and 90 percent drop out within twelve months. In
sharp contrast, more than two-thirds of drug-court
participants complete a treatment program lasting a
year or more. The benefits of drug court programs
have been demonstrated in nonurban as well as urban
communities.40
Clearly, the drug-court movement represents a shift
away from a criminal justice policy oriented toward
punishing drug users to a policy that focuses on treatment and recovery. Several U.S. states have begun to
develop driving-under-intoxication (DUI) courts,
whereas other U.S. states are expanding the drug treatR
ment programs within their correctional facilities.
According to experts in the field of drug-abuse
I
treatment, the mandated treatment approach in drugC
court programs is more likely to result in a successful
outcome than in circumstances in which the decision
A
to go into treatment is made on a voluntary basis. One
R
D
,
man in a Boston drug court expressed his feelings in
this way:
Drug court at first was just getting in the way of my
using. But I think without drug court, I probably
would never have went to Gaven House, got me a
program, got me in line for getting sober. I didn’t
want to be here, but at the same time now that it’s
almost over, I’m kind of grateful for it, because I
probably would not have stopped or even wanted to.
You know? So I’m grateful for drug court.41
Since the early 1990s, a number of special problemsolving court programs have been created to foster
treatment for other psychosocial difficulties. Mentalhealth courts, for example, provide a means for mentally ill defendants who have committed nonviolent
criminal offenses to receive psychiatric evaluation and
treatment. Other programs address problems of domestic violence (Drugs . . . in Focus).42
Drugs…A in Focus
D
A Simulated Debate: Should WeR
I
Legalize Drugs?
The following discussion of viewpoints represents the E
opinions of people on both sides of the controversial
issue of the legalization of drugs. Read them with an N
open mind. Don’t think you have to come up with the
N
final answer, nor should you necessarily agree with the
argument you heard last. Many of the ideas in this dis- E
cussion come from the sources listed.
Point
2
Legalization would get the problem under some degree
4
of control. The “war on drugs” does nothing but increase
the price of illicit drugs to what the market will bear, and
7
it subsidizes the drug dealers and drug kingpins around
the world. If we legalize drugs, we can take the profit out
9
of the drug business because legalization would bring
the price down dramatically. We could regulate drug T
sales, as we do now with nicotine and alcohol, by setting
S
up centers that would be licensed to sell cocaine and
heroin, as well as sterile syringes, while any drug sales to
minors would remain a criminal offense. Regulations
would also ensure that drugs maintained standards of
purity; the health risks of drug contamination would be
drastically reduced.
Chapter 6
Counterpoint
Legalization is fundamentally immoral. How can we allow
people to run to the nearest store and destroy their lives?
Don’t we as a society have a responsibility for the health
and welfare of people in general? If the drugs (pure or
impure) were available, the only effect would be to increase
the number of drug abusers. When Britain allowed physicians to prescribe heroin to “registered” addicts, the number
of heroin addicts rose five-fold (or more according to some
informal estimates), and there were then cases of medical
abuse as well as drug abuse. A few unscrupulous doctors
were prescribing heroin in enormous amounts, and a new
drug culture was created.
Point
How moral is the situation now? We have whole communities living at the mercy of drug dealers. Any increase in
drug users would be more than compensated for by the
gains of freedom from such people. Even if the sale of
crack were kept illegal, conceding that this drug is highly
dangerous to society, we would have an 80 percent reduction in the black market for drugs, a substantial gain for the
welfare of society. We can’t guarantee that our inner cities
would no longer be places of hopelessness and despair, but
at least we would not have the systemic violence associated
with the drug world. Besides, with all the money saved
Drugs and the Criminal Justice System
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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from programs set up to prevent people from getting hold
of illicit drugs, we could increase the funding for drug
treatment programs for all the drug abusers who want them
and for research into ways of understanding the nature of
drug dependence.
Counterpoint
No doubt, many drug abusers seek out treatment and want
to break their drug dependence. Perhaps there may be
some individuals who seek treatment under legalization
because there would no longer be a social stigma associated with drug abuse, but many drug abusers have little or
no long-term commitment toward drug treatment. In the
present situation, the illegality of their behavior allows us
to compel them to seek and stay in treatment, as well as
monitor their abstinence by periodic drug testing. How
could we do this when the drug was legal? Besides, how
would we approach the education of young people if drugs
were legal? We could not tell them that cocaine would
give them cancer or emphysema, as we warn them of the
dangers of nicotine, only that it would prevent them from
being a productive member of society and would have
long-term effects on their brains. If the adults around them
were allowed to use cocaine, what would be the message to
the young? Simply wait until you’re twenty-one?
Point
We already have educational programs about alcohol
abuse; the message for heroin and cocaine abuse would be
similar. The loss of productivity due to any increased
availability of drugs would not be as significant as the present loss of productivity we have with alcohol and cigarettes. With the tax revenues obtained from selling drugs
legally, we could have money for more extensive anti-drug
advertising. We could send a comprehensive message to
our youth that there are alternatives to their lives that do
not include psychoactive substances. In the meantime, we
would be removing the “forbidden fruit” factor in drugtaking behavior. Drugs wouldn’t be a big deal.
Counterpoint
Arguing that people take drugs because drugs are forbidden
or hard to get ignores their basic psychological allure. If you
lowered the price of a very expensive sports car, would you
have fewer people wanting to buy one? Of course not. People would want a fast car because they like fast cars, just as
people will still want to get high on drugs. Legalizing present drugs would only encourage the development of more
dangerous drugs in the future. Look at what happened with
crack. Cocaine was bad enough, but when crack appeared
on the scene, it made the situation far worse.
Point
It can be argued that crack was marketed because standard cocaine powder was too expensive for people in the
inner cities. If cocaine had been legally available, crack
might not ever have been created because the market
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Part One
would not have been there. Even with crack remaining
illegal under a legalization plan, there is at least the possibility that the appeal of crack would decline. The trend
has been lately that illegal drugs are getting stronger,
while legal drugs (alcoholic beverages and cigarettes) are
getting weaker as people become more health-conscious.
Legalization might make presently illicit drugs weaker in
strength, as public opinion turns against them. The main
problem we face is that spending 60 percent of a multibillion-dollar drug-law-enforcement program on the
“supply” side of the question, and only 40 percent on
reducing the demand for drugs is not working. If one
source of drugs is controlled, another source takes its
R The link between drugs and crime is a direct result
place.
of the illegality of drugs. It’s not the individuals with drug
I
dependence
that are destroying the country; it’s the drug
dealers.
Right
now, the criminals are in charge. We have
C
to change that. Only legalization would take away their
A and refocus our law-enforcement efforts on other
profits
crimes that continue to undermine our society.
R
Counterpoint
D
The frustration is understandable, but let’s not jump into
something
merely because we’re frustrated. We can allocate
,
more funds for treatment without making drugs legal. We
can increase funds for scientific research without making
drugs
A legal. We need a more balanced program, not an
entirely new one. Polls do not indicate general support for
drug
Dlegalization. Between 60 percent and 80 percent of
the U.S. public supports continued prohibition of drugs.
Rcitizens appear to recognize that legalization would
Most
make
I a bad situation worse, not better.
Critical
E Thinking Questions for Further Debate
1.N
Is it valid in this debate to make a distinction between
“hard drugs” such as heroin and cocaine and “soft
Ndrugs” such as marijuana and hallucinogens?
2.E
What is your prediction of what would happen if all
our drug-abuse-prevention efforts were focused exclusively on the Harm Reduction approach?
2
4
7
9
T
S
Sources: Dennis, Richard J. (1990, November). The economics of legalizing drugs. The Atlantic, 126–132. Goldstein, Avram (2001). Addiction: From biology to drug
policy (2nd ed.). New York: Oxford University Press.
Goode, Erich (1997). Between politics and reason: The
drug legalization debate. New York: St. Martin’s Press.
Gray, James P. (2001). Why our drug laws have failed and
what we can do about it. Philadelphia: Temple University
Press. Kleiman, Mark A. R. (2001, May/June). Science and
drug abuse control policy. Society, 7–12. Levinthal,
Charles F. (2003). Point/counterpoint: Opposing perspectives on issues of drug policy. Boston: Allyn and Bacon,
Chapter 1. U.S. Department of Justice, Drug Enforcement
Administration. Speaking out against drug legalization.
http://www.usj.gov. Wilson, James Q. (1990, February).
Against the legalization of drugs. Commentary, 21–28.
Drugs and Society: The Criminal Justice Perspective
Drugs, Society and Criminal Justice, 3E by Ken Charles F. Levinthal.
Published by Prentice Hall. Copyright © 2012 by Pearson Education.
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Summary
●
●
Of the billions of federal dollars spent annually on
the “war on drugs,” the greatest proportion of the
money is spent on drug-law enforcement.
There are four general levels of present-day drug-law
enforcement: (1) source control, (2) ...
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