Building a Police State, Brick by Brick, by Ralph Heller, NPRI Senior Research Fellow
According to the disturbing evidence in a two-year study undertaken by the Pittsburgh Post Gazette, federal prosecutors and law enforcement personnel commonly break the law in pursuit of convictions. Cited in the 10-part series that emerged from the study are numerous examples of prosecutors lying, hiding evidence, distorting facts, engaging in cover-ups, paying for perjured testimony and “setting up” innocent people to help win indictments, guilty pleas and convictions.
Moreover, like their state and local counterparts, federal prosecutors and law enforcement personnel are only rarely punished or even reprimanded for their misconduct despite the fact that they have caused innocent individuals to lose their jobs, their assets and even their families. The Post-Gazette series also cites a number of innocent people who were sent to prison because prosecutors had withheld favorable testimony, as well as cases in which criminals walked free as a reward for conspiring with law enforcement personnel against others.
Perhaps saddest of all is the observation that rapidly growing prosecutorial and law enforcement misconduct at the federal level is contagious. Increasing numbers of county sheriffs and local police chiefs are asking themselves, “If the feds can get away with such things, why can’t I?”
Dismantling Freedom’s Safeguards
In defending the conduct of Special Prosecutor Kenneth Starr several Republicans reminded us that it is actually fairly commonplace for prosecutors to threaten, wire and “flip” witnesses when building cases against those suspected of murder, racketeering and other serious offenses. It represents a 20th century trend in law enforcement that would have deeply offended the Founding Fathers and which might be called the “Super-Capone Strategy.” In the 1920s federal authorities became frustrated at their inability to pin on Chicago mobster Al Capone responsibility for numerous murders, kidnappings and extortion schemes.
Unable to prove Capone guilty of such crimes, prosecutors decided to indict him instead for federal tax evasion and won a conviction.
In today’s updated version of the Capone Strategy witnesses as well as suspects who are reluctant to cooperate with prosecutors are regularly threatened with convictions for lesser offenses. It’s called “plea bargaining,” which is a graceful way of describing blackmail.
Only rarely are many of today’s judges willing to hold law enforcement strictly accountable for safeguarding the constitutional rights of witnesses and suspects, while state legislative bodies have bent over backwards to accommodate law enforcement. The Iowa Legislature, for example, went so far as to authorize police to conduct what it called “citation searches” whenever they stopped someone for even the most minor infraction like not wearing a seatbelt.
Occasionally—albeit not often enough—a citizen will step forward to contest such laws. In 1996 Patrick Knowles was stopped for speeding in Iowa, and even though there existed no probable cause to suspect that Knowles was guilty of anything more serious, the arresting police officer searched his car.
Knowles challenged the constitutionality of the law, a challenge which ultimately miraculously reached the U.S. Supreme Court where Justice Scalia posed the question that had never occurred to police-worshipping legislators and newspaper editors in Iowa: “If the police have the power to search you anytime you happen to commit a misdemeanor, does this mean that you could be strip-searched for jaywalking?”
As in Iowa, most state legislatures are very reluctant to fastidiously hold law enforcement accountable for upholding and safeguarding the constitutional rights of ordinary citizens, and increasingly the traditional lines that for so long separated the three branches of government have become badly blurred.
Right here in Nevada—in Washoe County—an attorney was just elected to the district court bench with the open support of the county sheriff who appeared for him in countless television campaign commercials—in uniform. But if you happen to be arrested by one of that sheriff’s deputies, how would you like finding yourself standing before a judge who owed his election to the sheriff?
What this represents is towering insensitivity on the part of the newly elected judge and the sheriff, as well as the arrogance which increasingly seems to be law enforcement’s identifying hallmark. Meanwhile, two once separate branches of government in Washoe County now appear to the public to be just one.
The Law and the Courts
To make sure that they are holding as many cards as possible, law enforcement officials all over the country have pressed state legislatures to increase penalties for minor violations—like a broken tail light—which police can then use as leverage in the crime fighting strategy known as “zero tolerance.”
Former New York City Police Commissioner William Bratton was among the first to institute a policy of actually detaining people for such petty offenses as jumping over a subway turnstile or jaywalking, and then searching those arrested and running warrant checks on them. During the 1960s it was widely believed that the Warren Court had hamstrung law enforcement by insisting that such searches and seizures were presumed to be unconstitutional unless accompanied by a search warrant and probable cause. Law enforcement and political “law and order” conservatives were very critical of the Warren Court, so that during the 1970s and 1980s the Court expanded an important exception to the constitutional safeguard, a practice which became known as “the search incident to arrest.”
The Court held that when a suspect was taken into custody, it was perfectly reasonable for police officers to search him and the area around him to protect themselves and to prevent the destruction of evidence. But what the Court really succeeded in doing was creating an incentive for police to arrest suspects on any pretext—like speeding or not wearing a seatbelt—so that they could conduct a search of the suspect’s car without a warrant.
It also created an incentive for states to authorize arrests for increasingly minor offenses—even jaywalking and letting a dog off a leash in some states—ostensibly to give the police greater maneuverability in the fight against crime.
Only in recent years have many conservatives come around to understand that notwithstanding its other faults the Warren Court’s protection of traditional constitutional safeguards was not without merit. The judicial system as it appears today has perhaps been best described by Robert Merkle who is now back in private practice as a defense attorney after serving for six years as a U.S. Attorney in Florida. Observed Merkle, “It’s a results-oriented process today, and fairness be damned.”
As if to underscore the judicial system’s rapidly growing contempt for the proverbial “little guys”—rank-and-file citizens—U.S. Attorney General Janet Reno not long ago made a number of phone calls to Capitol Hill in a lobbying effort against a bill that would have required federal prosecutors to abide by state ethics guidelines in each state. What Ms. Reno found most objectionable, incredibly, are the laws or guidelines in most states that prohibit the interrogation of a suspect who has retained an attorney unless that attorney is present. Sounding like the constitutional conservative she is decidedly not, she insisted with a straight face that the proposed bill would violate the spirit of federalism, not previously recognized as a Clinton Administration priority.
Fortuitously and none too soon, some of today’s questionable law enforcement and judicial practices are at last coming under a magnifying glass. Syndicated columnist James Kilpatrick relates the case of a woman named Sonya Singleton in Wichita, Kansas who was convicted in 1997 of laundering money and distributing cocaine. As Kilpatrick noted for readers, it would have been considered a “ho-hum story” but for the fact that a key witness against Singleton at her trial was a co-conspirator with whom the government had made a deal. If he would testify against Singleton, the U.S. Attorney would ask the sentencing judge to go easy on him.
Singleton’s attorney moved to exclude the testimony because the co-conspirator would receive a “thing of value” in exchange for testimony— a practice specifically prohibited by federal law which actually reads:
Whoever directly or indirectly gives, offers or promises anything of value to any person, for or because of the testimony to be given by such person as a witness upon a trial…shall be fined or imprisoned for not more than two years, or both.
Obviously, under the terms of that law there are countless U.S. attorneys, district attorneys and prosecutors who have made such “deals” with witnesses and who should be “fined or imprisoned for not more than two years, or both.”
Playing Against a Stacked Deck
Rarely more reckless than when it is pondering the constitutional safeguards on which ordinary citizens must depend, the government argued in the Singleton appeal that “anything of value” meant only money or tangible goods—as though a jail term reduced from five years to two is of no value—and then proceeded to argue that under the law government agents are often regarded as immune from “laws of general application.”
Increasingly the situation is no more promising at state and local levels. Rare is the city council or county commission that insists on fastidiously holding police and sheriffs’ departments to standards of high behavior and constitutional conduct.
In Washoe County, Nevada this fall a sheriff’s deputy shot and killed an innocent young man, and shortly thereafter a well known local attorney reported that he had been asked by two other attorneys to advise the young man’s widow and family who were no doubt considering a civil suit against the Sheriff’s Office.
The Reno Gazette-Journal prominently reported the attorney’s offer of assistance, but refused to disclose—even after having been alerted by readers—that the attorney had long been the Sheriff’s personal lawyer. Clearly, if he advised the family as mysteriously suggested, it would constitute a transparent conflict of interest.
This may be the biggest problem of all. For every Pittsburgh Post-Gazette there are two or three Reno Gazette-Journals far more interested in law enforcement “apologetics” and fawning coverage of favorite political personalities than in protecting their readers. Wittingly or unwittingly, we have been slowly but surely building a new police state. Now let’s hope that before even one more brick is added we can tear it down. NJ
Ralph Heller is senior consulting editor of Nevada Journal.