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Drug Prosecutions and Abuse of Federal Power

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What if I told you that there’s a scandal brewing at the federal Drug Enforcement Agency that’s potentially worse – in some respects, at least – than the NSA’s illicit surveillance? Would you be equally outraged, or would you dismiss it and turn your attention back to the latest prevarications by Glenn Greenwald, et al.?

According to The Raw Story, this is what the DEA has been up to, not since 9/11, or since Pres. Obama took over, but since the Clinton Administration:

The Justice Department is reviewing a U.S. Drug Enforcement Administration unit that passes tips culled from intelligence intercepts, wiretaps, informants and a large telephone database to field agents, White House Press Secretary Jay Carney said Monday.

Reuters reported Monday that agents who use such tips are trained to “recreate” the investigative trail to effectively conceal the DEA unit’s involvement from defense lawyers, prosecutors and even judges, a policy many lawyers said could violate a defendant’s right to a fair trial. Federal drug agents call the process of changing the true genesis of an arrest “parallel construction,” according to a training document.

The secret program is run by DEA’s Special Operations Division, but criminal defendants (and their lawyers) are never told that SOD was involved in passing the information on to the field agents who use it. As The Raw Story article points out, because SOD’s involvement is concealed and federal agents construct an essentially false explanation as to how a defendant’s information came into their possession, it may be difficult for defendants to discover potentially exculpatory evidence – that is to say, evidence of innocence – that may also have been collected.

But I see a larger problem with what the DEA is doing. While it may be true that the program enables federal agents to hide exculpatory evidence, that requires affirmative bad faith on their part. Fifty years ago in Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” It’s a principle so deeply rooted in the criminal justice system that everyone associated with prosecutions knows they have to turn over “Brady materials” whenever the defense asks for them … and the defense always asks for them.

Which is not to say that federal authorities would never attempt to railroad an innocent person by withholding exculpatory evidence, but I suspect they have a greater incentive to conceal the source of damning evidence where there’s a question as to the legality of how that evidence was seized. For instance, let’s say that in the process of “cull[ing] [information] from intelligence intercepts, wiretaps, informants and a large telephone database,” as The Raw Story describes the process, SOD determines that some of that information was illegally obtained. The information is “probative,” as lawyers like to say – that is, it tends to show the individual under investigation actually committed a crime – but it was obtained without a warrant, or the information itself fell outside the scope of an otherwise lawfully issued warrant. So it would ordinarily be subject to a motion to suppress on the grounds that it was obtained in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

But SOD believes, based on that information, that the defendant is, in fact, guilty of a crime. They also know that if they pass that information along to field agents, those field agents are going to, as The Raw Story explains, “‘recreate’ the investigative trail to effectively conceal [SOD’s] involvement from defense lawyers.” And in so doing, those agents can, in effect, sanitize the means by which the information was actually obtained.

Problem solved.

Except that the program almost encourages wholesale violations of the Fourth Amendment. Or, at the very least, when those violations occur, the program encourages federal agents to scrub clean the record so that the evidence in question appears to have been seized legally. And because the defense, and, in fact, even the prosecutors and the judge, have no idea how the information was actually obtained, there’s no way to enforce the defendant’s Fourth Amendment rights after the fact by suppressing the illegally obtained evidence.

Now, I’m not saying this has occurred. I’m saying that the way this program is designed, there’s no way to know whether it’s occurred. But let’s face it: The incentive to nail a guilty person by bending the rules – and thereby further eroding the Fourth Amendment – is much greater than the incentive to frame an innocent person by withholding exculpatory evidence.

Of course, this story isn’t nearly as sexy as a fugitive who runs off to Hong Kong, and then to Russia, to leak secrets about the NSA’s surveillance programs. But lest you think it’s insignificant, consider the fact that the federal government brings tens of thousands of drug prosecutions every year. By way of example, the Bureau of Justice Statistics reports that during the period from October 1, 2008 through September 30, 2009, of 183,986 individuals arrested and booked by federal authorities, 30,928, or 16.9%, were for drug offenses. Bureau of Justice Statistics, Federal Justice Statistics 2009 – Statistical Tables, Table 1.1, at p. 4 (.pdf file). The Bureau states that during that period, “[d]rug offenders’ cases remained the most prevalent at adjudication and sentencing, in prison, and under supervision,” in the federal system.

And who were those “offenders”? Again, according to the Bureau, the vast majority were people of color. Of the 29,896 individuals arrested by the DEA during that same period, 13,266, or 45.5%, were “Hispanic/Latino,” and 8,361, or 28.3%, were “Black/African American.” Federal Justice Statistics 2009 – Statistical Tables, Table 1.4, at p. 6. So it’s safe to assume that people of color will disproportionately bear the burden of the DEA’s potentially illegal, and certainly Fourth Amendment-eroding, sleight-of-hand.

It will be interesting to see whether the DEA’s program garners anywhere near the attention the NSA surveillance controversy has generated, particularly among white liberals who pray at the altar of Greenwald and Snowden. That, however, would require them to value the Fourth Amendment rights of black and brown people to the same extent they value their own right to privacy.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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2 Comments

  1. Good Greg August 13, 2013 at 4:45 pm

    Dave, I was reading this piece, throwing out an amen every now and then. Just really thinking you had nailed it. Here it was, just one more huge glaring example of what happens when the government gets too big and there is no accountability.

    Then you flipped the race card. I’m whoa, where’d that come from. This isn’t about race. This is about lack of accountability and improper incentifying. Go to your post about Justice or Convictions. If prosecutors’ metrics were based on justice, proper convictions, no reversals, no lawsuits lost, etc, rather than just on getting convictions. And if prosecutors had the potential to be personally liable, civilly or criminally, in those cases, then there would be far less need for the Innocence Project. Fewer wrongful arrest lawsuits, fewer innocent people in jail/lives ruined.

    I agree that statistically more minorities are prosecuted for drug crimes, but it isn’t racist unless it designed (intended?) to prosecute more minorities. Otherwise it is just a violation of the 4A and minorities just get caught up in it more than often.

    Seriously read the blog again without the last 2 paragraphs and it is about a potential for miscarriage of justice against Americans by DEA agents potentially violating the 4A. Which should anger all of us. Just as prosecutors being motivated by convictions rather than justice should anger all of us. The fact that minorities are most impacted is real and wrong and needs to be considered, but if we fix the problems for us all, it fixes the problems for minorities. If we only worry about it because it mostly impacts minorities, we are not fixing the right problem for the right reason.

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