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Wednesday, April 6th, 2011

Reason talks with three ex-warriors who now fight against the War on Drugs

Interviewed by Michael W. Lynch – January 2002

Like any war, the War on Drugs has its good soldiers — a varied bunch, coming from all walks of life and filling all ranks. They include eager volunteers, from the drug czars at the top of the command chain to the beat cops, Drug Enforcement Administration and Customs Service agents out in the field. The war also has reluctant conscripts, such as state and federal judges compelled by mandatory minimum sentencing rules to enforce laws that many see as counterproductive and unjust.

Increasingly, the War on Drugs also has what its partisans might consider traitors — former soldiers who have become convinced that U.S. drug policy is ineffective, immoral, or some combination of the two. Reason National Correspondent Michael W. Lynch recently spoke with three such figures who were once integral cogs in the drug war machine.

The Cop: Joseph D. McNamara

Joseph D. McNamara started out as a grunt in America’s battle against drugs. “It was sort of like the body count in Vietnam,” says McNamara about the petty arrests for heroin he made as a Harlem beat cop in the late 1950s. “The department loved to count these drug arrests and release statistics to show we were winning the war.” In 1969, he spent a year as a criminal justice fellow at Harvard Law School. Eventually, he ended up earning a Ph.D. in public administration. “I wrote my dissertation in 1973 and predicted the escalation and failure of the drug war — and the vast corruption and violence that would follow,” recalls McNamara. “I never published it because I wanted a police career and not an academic career.”

That’s exactly what he got. He served as chief of police in Kansas City from 1973 to 1976. In the bicentennial year, he moved on to become the top cop in San Jose, California, a post he held until he retired in 1991. He currently hangs his hat at the Hoover Institution at Stanford, where he conducts seminars on the War on Drugs for law enforcement officials. The author of six books, including the drug war detective novel Code 211 Blue, the 66-year-old McNamara is working on a new book titled Gangster Cops: The Hidden Cost of America’s War on Drugs.

Reason: How did you get involved in what is now called the War on Drugs?

Joseph D. McNamara: I got involved as a foot patrolman in Harlem way back in 1957. A few years later the heroin epidemic swept through Harlem and was devastating. And so the police did what the police do: We arrested everyone in sight. It soon became apparent that it wasn’t reducing drug use or drug selling. My eyes were really opened one day when my partner and I arrested a heroin addict. The addicts gathered on the top floor landings of buildings, which we referred to as shooting galleries. We used to routinely bust them for possession of hypodermic needles and also for the big crime of having cookers with residues of heroin.

One day an addict asked if we could give him a break. He said, “I’ll give you a pusher if you let me go.” We followed him down Lenox Avenue in uniform and in a marked police car. As he talked to one man after another, it struck me how little impact the police had on the drug problem. If we hadn’t known what he was talking about, we would’ve thought they were just two men talking sports or the weather or whatever.

Reason: Is this why police rely on informants and sting operations?

McNamara: Since the police can’t do their job the way they do it with other crimes, they resort to informants and to illegal searches. This is a major problem underlying police integrity throughout the United States.

Last year, state and local police made somewhere around 1.4 million drug arrests. Almost none of those arrests had search warrants. Sometimes the guy says, “Sure, officer, go ahead and open the trunk of my car. I have a kilo of cocaine back there but I don’t want you to think I don’t cooperate with the local police.” Or the suspect conveniently leaves the dope on the desk or throws it at the feet of the police officer as he approaches. But often nothing like that happens.

The fact is that sometimes the officer reaches inside the suspect’s pocket for the drugs and testifies that the suspect “dropped” it as the officer approached. It’s so common that it’s called “dropsy testimony.” The lying is called “white perjury.” Otherwise honest cops think it’s legitimate to commit these illegal searches and to perjure themselves because they are fighting an evil. In New York it’s called “testilying,” and in Los Angeles it’s called joining the “Liar’s Club.” It has lead some people to say L.A.P.D. stands for Los Angeles Perjury Department. It has undermined one of the most precious cornerstones of the whole criminal justice process: the integrity of the police officer on the witness stand.

Reason: What role do institutional interests play in the drug war?

McNamara: One year when I was police chief in San Jose, the city manager sent me a budget that contained no money for equipment. I politely told him that when you have a police department, you have to buy police cars, uniforms, and other equipment for the cops. He laughed, waved his hand, and said, “Last year you guys seized $4 million dollars. I expect you to do even better this year. In fact, you will be evaluated on that and you can use that money for equipment.” So law enforcement becomes a revenue-raising agency and that takes, in too many cases, precedence over law enforcement.

Reason: From the perspective of the working police officer, how has the War on Drugs changed over the years? McNamara: It has become the priority of police agencies. It’s bizarre. We make 700,000 arrests for marijuana a year. The public is not terrified of marijuana. People are terrified of molesters, school shootings, and people stalking women and children. The police are not putting the resources into those crimes where they could be effective if they gave them top priority.

Reason: There’s some controversy over whether the arrests for possession are really for possession or if they are for dealing but prosecuted as possession. Do you have any thoughts on that?

McNamara: It’s both true and false. Most low-level dealers are users, like the guy that we finally did bust after we let the addict go. He was an addict, too, and he was no better or worse than the guy we let go. But what we had actually done, which is standard operating procedure in the drug war, is let someone go who had committed a crime because they enticed someone else to commit a more serious crime. Reason: What role does race play in the War on Drugs?

McNamara: The drug war is an assault on the African-American community. Any police chief that used the tactics used in the inner city against minorities in a white middle-class neighborhood would be fired within a couple of weeks.

It was a very radical change in public policy for the federal government to criminalize drugs in the early 20th century. Congress was reluctant to pass it because you had a very small federal government in 1914 and to interfere with the state police powers was a big deal. They couldn’t get this legislation passed until they played the race card: They introduced letters and testimony that blacks were murdering white families; the police in the South were having trouble with “Negroes” because of these drugs; there were white women in “yellow” opium dens. The same prejudice popped up in 1937 when they outlawed marijuana.

If anyone tried to pass laws on those same bases today, they’d be condemned. Yet the laws that we have are the last vestiges of Jim Crow. You don’t have to identify yourself as a bigot anymore — you can be for the drug war and you really are getting “them.”

Reason: Do you think there’s a greater risk in just questioning the operation of the War on Drugs than there is to testilying and going along with it in unethical ways?

McNamara: For police chiefs, there is some wiggle room. They can support sterile needle exchanges, medical marijuana treatment, and education diversion instead of incarceration. But it’s asking an awful lot for them to come out and say, “Look, this drug prohibition is a stupid thing we shouldn’t have started in 1914 and it gets worse and worse every year.” That’s a big step for a police chief. That’s asking them to commit career suicide.

Reason: Were you frustrated as a police chief with the constraints of the law?

McNamara: Enormously. Police chiefs are sitting on kegs of dynamite. Many of them are really decent, progressive guys. They are worried about the disproportionate racial impact and the corruption. But there’s nothing they can do. There’s just too much money in it. You don’t have the ability, regardless of the propaganda, to eliminate the code of silence. You don’t have unlimited power. You have lots of constraints on how the police can discipline themselves, even for chiefs who are legitimately interested in doing so.

The Fed: Michael Levine

Michael Levine was born to fight the War on Drugs. He grew up tough in the Bronx during the 1950s and was an accomplished brawler by junior high school. Though Jewish, he identified with the Puerto Ricans moving into the neighborhood and he picked up fluent Spanish, a skill that came in handy later when he started doing undercover work in Latin America. He was personally motivated to fight drugs: His kid brother was addicted to heroin. “I saw it killing my brother,” says Levine, 60. In 1965, Levine started a 25-year career in federal law enforcement that included stints in the Customs Service, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, and Firearms. He traveled the world and arrested some 3,000 people.

Yet it wasn’t long before Levine noticed a gap between the rhetoric and reality of the drug war. Says Levine, “Among DEA agents, the notion of really winning the drug war is so far out of the question that anyone who even mentions it is considered some kind of nut.” Today, he serves as an expert witness on all things drug-related and hosts a radio show, Expert Witness, on WBAI, Pacifica Radio, in New York. He’s authored and co-authored numerous books, including Deep Cover: The Inside Story of How DEA Infighting, Incompetence, and Subterfuge Lost Us the Biggest Battle of the Drug War (1990) and the novel Triangle of Death: Deep Cover II (1996).

Reason: Why did you want to become a drug agent?

Michael Levine: I believed that it was the number one national security threat. I saw heroin killing my brother. I saw people around me dying. I saw the crime rate skyrocketing. I fell into the same trap that we are in right now. I blamed everything on those evil drug dealers.

Reason: After a quarter-century as an agent, how have you seen the drug war change at the agent level?

Levine: It has become murderous. I remember back to the beginning of the Drug Enforcement Administration, which was founded in 1973 by President Richard Nixon. At that time, three agents went into the wrong premises in Collinsville, Illinois. They were prosecuted for breaking down the wrong door.

I was involved as an expert witness in the Donald Carlson case, which was on 60 Minutes. In that case, a multi-agency task force, outfitted in high-tech guerrilla gear, crashed into the home of a Fortune 500 executive and shot him down in his own living room on the basis of the word of an uncorroborated informant. Nobody was penalized for it. In fact, the people who did it were eventually promoted. As the expert witness, I had access to all the reports and I recommended that these people be prosecuted. They paid no attention to the man’s civil rights. He had no record or reputation for drugs. They did nothing but crash through his door on the basis of an informant’s say-so. The drug war has succeeded in militarizing police against their own people.

Reason: At what point did you start to question the War on Drugs?

Levine: I was sent undercover to Bangkok during the Vietnam War. I was hanging with Chinese drug dealers in Bangkok. They were smuggling heroin into the U.S. in the dead bodies of GIs who were transshipped through Thailand. The Chinese drug dealers invited me to go to the factory up in the Golden Triangle area in northern Thailand, where much of the heroin sent to the United States originated.

All of a sudden I was cut off from logistical support. I was given no money to pay my hotel bills. There were these snafus going on with administrative stuff. They were so strange and inopportune that the dealers were starting to suspect me. It started to get really dangerous. A CIA agent informed me that I wasn’t going undercover to the factory. I asked why. First he told me it was dangerous, that we had lost people up there. But I insisted. Finally, he said, “Levine, our country has other priorities.” That was the first time I heard that phrase. That was the beginning of me doubting the intentions of our leaders in the drug war.

Reason: What year was that?

Levine: That was 1971.

Reason: And yet you continued on.

Levine: I was a good soldier. I had come out of the military. My brother was still a heroin addict. At that point, I thought my experience in Thailand was an isolated incident here in Southeast Asia. I couldn’t conceive of my country lying to me.

Reason: In the chapter you contributed to After Prohibition: An Adult Approach to Drug Policies in the 21st Century (Cato Institute), you argue that drug agents have come to recognize that their efforts ultimately have no impact on the drug trade. What’s the mindset of agents in this war?

Levine: Before you become an agent, you’re bombarded with stories of drug war victories. It’s painted as heroic — guys in guerrilla outfits and jungle gear fighting the drugs everywhere. You want to do something for your country. Then when you get in, the first thing you discover is that you can’t touch some of the biggest drug dealers in the world because they’re protected by the CIA or they’re protected by the State Department. Everyone from Carlos Salinas de Gortari of Mexico to Manuel Noriega to the contras in Nicaragua to the Mujahedin in Afghanistan. Those of us who work overseas realize that this whole thing is a three-card monte game, that it’s a lie.

Reason: You say the cartel responsible for much of the cocaine in the U.S. during the ’80s not only didn’t fear the drug war but that they counted on it to increase the price and to weed out smaller dealers. What is your evidence for that?

Levine: It’s 1987 and I’m posing as Luis Miguel-Garcia, an undercover Mafia don who’s half Sicilian and half Puerto Rican. I’m in a meeting at a restaurant outside of Panama with another undercover customs agent and the ruling faction of La Corporacion, the Bolivian cocaine cartel. They invited us to Bolivia to look at their production facilities. At that time, the U.S. had begun its paramilitary operations in Bolivia, which are now in Colombia.

So as a pretext, I told the man that we can’t go down there because we read in the newspapers that the U.S. military is down there. He laughed and said, “That’s just for the gringos. That’s not real.” And his hand slid up and down above the table. He said, “They have helicopters that go up and that go down. We know what they are doing before they do.” That’s the reality of the drug war. It’s completely fictitious. It’s only for the American people.

Reason: You think that’s still the case?

Levine: It’s absolutely still the case.

Reason: You say, in your experience, that 90 percent of drug users are white. What do you base this on?

Levine: That’s DEA statistics. I’ve spent much of my life in these ghetto neighborhoods watching drug dealers. I would say 95 percent of the customers are white.

Reason: If this is the case, why are the statistics almost reversed when it comes to drug arrests?

Levine: Because you go after the dealer. You have a lot of these think tanks, such as The Lindesmith Center, saying that it’s a racist drug war and that the cops go after users. That mistaken theory is based on the statistic of arrests for possession. I have made 3,000 arrests myself and, as a supervisor of squads of agents for 17 years, have probably been involved in 8,000 arrests. A huge amount of them are for possession. But none is for using drugs. Not one. We didn’t go after users. We went after a dealer, street-level or whatever, and charged them with possession because it’s easy to prove.

Reason: You said that when you were stationed in New York, news directors would call up the DEA for a drug story on a slow news week and ask if they could go along with a bust. Did you have personal experience with that?

Levine: I’ve been on video with my face blacked out. Dan Rather, 20/20, ABC News.

Reason: You actually had personal experience with news directors calling up and then raids being hurried up or fabricated?

Levine: Here’s what happens. A news director needs a story. The special agent in charge of New York, who we called Captain Video, because he was very media conscious, would call our squad and say so-and-so is on the phone from ABC. Do you have anything going? Do you got anything you can make an arrest on? Is that manufacturing news? I don’t know. You tell me. That’s what would happen.

Reason: You claim to have witnessed numerous constitutional abuses. Can you give me some examples?

Levine: The Carlson case is the best. The man was a Fortune 500 executive and had no reputation whatsoever. He didn’t know coke from garden mulch. A criminal informant pointed out his house and two other houses. Agents, without any investigation whatsoever, just crashed into his house and shot the man down. That is now typical. 60 Minutes did a wonderful piece on it in 1993 called “The Informers.” There is no U.S. Constitution any more when it comes to the drug war.

Reason: What is the relationship between informants, drug agents, and arrests?

Levine: Informants run the drug war. Ninety-nine percent of all drug cases start off with a criminal informant. These informants are criminals and liars and they will create crimes to make money and, at the same time, get the protection of the people they are working for.

Reason: For all this, you’re against complete drug legalization. Why?

Levine: You can’t do it because certain drugs are just so addictive. I grew up in a bad neighborhood in South Bronx. Like I said, my brother became a heroin addict. I didn’t touch drugs because of the stigma. You weren’t a victim in those days, you were a scumbag lowlife and you were a felon. That worked on me. It was no surprise to hear from a poll taken during the first Bush administration that of the 99 percent of kids in ghettos who don’t touch drugs, the main reason they give is because they are illegal.

What do you do when you legalize it? You are the government crack dealer and a 14-year-old kid comes up to you. Do you sell it to him? If you say no, then you’re already talking about another prohibition, another market. So what do you do when you sell legal crack to a guy who’s 30 and he turns around and sells it to 15-year-old kids? That’s illegal! It doesn’t work. And, then you get into other drugs like Angel Dust, methamphetamines, LSD. What do you do with that stuff? Is it legal? You are talking about stuff that directly affects the public safety.

Reason: Do you think people can use these drugs recreationally, like alcohol?

Levine: Some drugs, yes, and some drugs, no. The blanket prohibition of drugs, I think, is wrong.

The Judge: James P. Gray

Most individuals arrested by a cop eventually appear before a judge. These days, they won’t be appearing in Judge James P. Gray’s Southern California courtroom. Since publicly questioning the U.S. drug strategy, the Orange County Superior Court judge has kept himself off the criminal calendar. But, like Levine and McNamara, he has witnessed the reality of the U.S. drug war — as a defense attorney in the Navy, as a prosecutor in Los Angeles, and as a judge. Says the 56-year-old Gray, “We’re flooding our courts with these cases that aren’t making any difference whatsoever.”

In 1998, Gray ran unsuccessfully against then-Rep. Bob “B-1″ Dornan in the Republican congressional primary for the 46th District in Orange County, California. Gray is particularly frustrated with what he says is a major pillar supporting the drug war: the informal prohibition of discussing options other than, well, prohibition. “The World Affairs Council in Orange County invited then-drug czar Gen. Barry McCaffrey to come here and debate me on drug policy,” says Gray. “His answer was, ‘No, I don’t have time to give a debate, but I do have time to give a speech.’” Gray never booked a debate with McCaffrey, but he put his side of the debate in a new book, Why Our Drug Laws Failed and What We Can Do About It (Temple University Press).

Reason: What has been your involvement with the War on Drugs?

James P. Gray: I go way back. I am a former drug warrior. I believed in it and I did it with a bold heart. I was a criminal defense attorney in the Navy and handled drug cases. I was a federal prosecutor in Los Angeles in the U.S. Attorney’s Office. For a short time, I held the record for the largest drug prosecution in the Central District in California. Having been a judge since 1983, I’ve seen in my own court that we just churn these people through the system and we seldom get the real top bananas.

Reason: Did any specific event prompt you to question your involvement with the drug war?

Gray: It just really evolved. I’ve been clipping newspaper articles now for about 20 years. It’s just the lights go on, and then the lights go on a little stronger. I can’t say there was an epiphany. It just was kind of a Chinese water torture. It just kept going and kept going, where eventually I just had to say something publicly about it.

Reason: What is the typical drug case that comes before your court?

Gray: The typical drug case is a small amount of drugs that is being sold by somebody to support his or her habit. You get into some larger ones. A couple of weeks ago we had a 12-ton shipment of cocaine coming towards San Diego. But mostly it’s just the low-level users and the low-level drug sellers. And we fill our prisons with them.

Reason: How do you adjudicate those typically? Does the law force you to adjudicate them in ways you think are counterproductive?

Gray: The answer to the second question is certainly yes. There are documented situations in which very conservative federal judges are literally in tears because they are required by the law to sentence a particular offender to a draconian sentence.

Reason: What’s the worst drug case you’ve had come before you?

Gray: I was on Juvenile Court for Abused and Neglected Children. I can’t get these cases out of my mind. It was common that a single mother — say she has two children — would hook up with the wrong boyfriend, who would be a drug dealer. One fine day he would tell her, “Look, Maria, I’ll pay you $500 to take this package across town to Charlie.” She basically knows it has narcotics in it. She gets arrested and gets five years in prison.

What happens to her children? They come into my court as abused and neglected children. There’s the mother in a prison jumpsuit and handcuffs and I tell her the truth. “You know, ma’am, you’re not going to be a functional part of your children’s lives for the next five years.” She starts to well up with tears. Then I tell her that unless she’s fortunate and has either a close personal friend or family member who is both willing and able to take custody of her children, they are very likely going to be adopted by somebody else by the time she gets out of prison. She dissolves into tears.

Taxpayers can start to dissolve in tears, also. Because for the next year they’re going to spend $25,000 of taxpayer money to keep this mother of two in prison. We’re going to spend upwards of $5,000 a month to keep each child in a group home until they are finally adopted by somebody else. So that’s $60,000 a year per child, plus $25,000 for the mother. We are spending $145,000 of taxpayer money to physically separate a mother from her children. It just doesn’t make any sense.

Reason: You write about a drug exception to the Bill of Rights.

Gray: When I graduated from law school in 1971, it was illegal for a police officer, even after arresting you, to search anything that was outside of your grasp. If you can reach over to something, then you could search it. But if a suitcase you were carrying was locked, the police could not go in there unless they got a search warrant first. They couldn’t go into the trunk of your car, they couldn’t go into the glove compartment, and they couldn’t go into the backseat.

That has totally been reversed. The police not only can search you and everything in your car, but they can also search your passengers.

They can search your mobile home, which is in effect a home on wheels. They can go through and search everything.

Reason: There’s a debate over whether the arrests for drug crimes are casual users for possession or dealers who are charged with possession because it’s easier to convict. Have you thought about this?

Gray: Basically, I think that the prosecutors are right. We have people who are so overwhelmed that they have to reduce the sentences by plea-bargaining. However, they are all small pushers. They are all little guys. And a lot of them are selling small amounts of drugs in order to support their habits, because the drugs are so artificially expensive.

Reason: What has been the response of your colleagues to your speaking out on this issue?

Gray: Anyone who talks about it with me in the elevator or in the judges’ lunchroom agrees that what we’re doing is not working. Publicly, judges are pretty conservative people. A lot of them don’t see themselves as social workers. A lot of them are concerned about their effectiveness and getting reelected, so they are just not going to say publicly what they believe privately.

That was really brought home to me when I gave four forums sponsored by the American Bar Association. After doing so, I received a letter from the present chief justice of the Supreme Court of a Southern state. He wrote, “Dear Jim: You’re right. The War on Drugs isn’t working. You’re also right that it’s fully appropriate for a sitting judge to discuss it because of what our position is in society. And I see these cases all the time coming across my desk. What we are doing simply isn’t working. But I gave up a lucrative law practice for this present job. I love my job and if I were to speak publicly, I would have to spend all my time justifying myself. I just don’t think I could do it.”

Reason: You write that the only people whose positions have improved under the drug war are those who make more money selling drugs and those who make money enforcing the drug laws. Are you alleging a sort of bootlegger-Baptist coalition, where lawbreakers and prohibitionists end up on the same side of an issue?

Gray: De facto, yes. It was not set up that way. Just like it wasn’t set up to discriminate against minorities. But it has evolved into an amazing alliance between the drug lords on the one hand, who are making just obscene amounts of money, and various officials who are getting paid money to enforce this. They both have a financial interest and incentive in continuing with the status quo.

When I was running for Congress a few years ago, I met individually with two sitting congressmen from Orange County to try to get their support. They both said that the War on Drugs isn’t working, but the problem is even worse than I thought because most federal agencies get extra money to fight the War on Drugs. It’s not just the obvious ones like the U.S. Customs Service and the DEA. It’s the little guys too, the Bureau of Land Management, the Bureau of Indian Affairs. They are addicted to drug war funding.