Award-winning investigative journalist (and dad) Peter Gorman has spent more than 20 years tracking down stories from the streets of Manhattan to the slums of Bombay. Specializing in Drug War issues, he is credited as a primary journalist in the medical marijuana and hemp movements, as well as in property forfeiture reform. His work has appeared in over 100 national and international magazines and newspapers.
Peter Gorman's love affair with the Amazon jungle is well-known to people in the field. Since 1984 Mr. Gorman has spent a minimum of three months annually there generally using Iquitos
Peru as his base. During that time he has studied ayahuasca the visionary healing vine of the jungle with his friend the curandero Julio Jerena. He has collected artifacts for the American Museum of Natural History botanical specimens for Shaman Pharmaceuticals and herpetological specimens for the FIDIA Research Institute of the University of Rome. His description of the indiginous Matses Indians’ use of the secretions of the phyllomedusa bicolor frog has opened an entire field devoted to the use of amphibian peptides as potential medicines in Western medicine.
by Peter Gorman
The Fifth Article of the Bill of Rights bars charging a person twice for the same criminal offence. Yet our prison systems house a number of people to whom exactly that has happened. Is it legal? Despite what most of us think, the answer is yes, when it's different sovreigns bringing the charges.
When Terry Woodard pleaded guilty to possession-with-intent-to- distribute methamphetemine in Arkansas state court in 1987 and was sentenced to two years supervised parole and eight years unsupervised release, he thought he'd put the episode behind him. He hadn't. After successfully completing his two years of supervised parole in 1989 he was rearrested and charged with the same crime by Federal agents. He again pleaded guilty, only this time the courts weren't so lenient with him: he received a 123 month mandatory minimum sentence, which he began serving in January, 1990.
James Melvin found himself in a similar situation after he pleaded guilty and received six years for a 1989 state offence of selling an ounce of cocaine to a friend who in turn sold it to an undercover policeman. But while Melvin was serving his state sentence another friend of his was arrested and charged with conspiracy for running an operation that allegedly was responsible for dealing five kilograms of cocaine. Melvin was recharged, this time by Federal agents, as a conspirator in the larger ring because the ounce he originally sold—and for which he was already serving six years—allegedly came from the friend’s five kilograms. On the second go-round for his ounce of cocaine Melvin received 14 1/2 years in the Petersburg, Virginia Federal penitentiary.
Regardless of what we feel about drug use, to most Americans both of these cases smack of paying twice for the same crime. Both men had already been sentenced for their crimes, yet both were recharged for the same drugs at the same time in the same place.
Is such prosecution legal? Yes, because the charges are being brought by two separate sovreigns: once by the state government, once by the Federal government. And although the protections against double jeopardy—being charged twice for the same crime—were considered so important that our founding fathers included them in the earliest amendments attached to the Constitution, the Supreme Court has held that those citizen protections are not abridged when the charges are brought by different jurisdictions. As a result, hundreds, perhaps thousands, of criminals are currently serving Federal time for the same crimes for which they have already served state time.
To defense attorneys, the use of such dual jurisdiction prosecutions is the equivalent of an end-around the intent of the Bill of Rights. To prosecutors, they are a way to insure that people who belong in prison stay there.
The most famous recent case of dual prosecution occurred in the aftermath of the Rodney King beating by four Los Angeles policemen. The officers were originally charged with assault in the case, a charge on which they were found not guilty at jury trial. But the public was so outraged by the verdict that federal prosecutors reindicted the officers in Federal court, this time on charges of violating the civil rights of Rodney King in beating him. The second trial resulted in convictions and jail sentences.
But the King case is more the exception than the rule. Dual prosecutions most often occur in simple drug and gun cases. Skip Bandiny, a retired career law enforcement officer from Monterrey, California who had moved with his wife to West Plains, Missouri, was arrested in 1989 for growing 33 marijuana plants on his farm in the Ozarks. Normally a case the Feds wouldn't touch—they rarely get involved with marijuana cases in which less than 50 plants are grown—when the state prosecutor offered Bandiny probation on his first offence—a deal the nearby Federal prosecutor considered too lenient—Bandiny was recharged in Federal court. The second set of charges though, included not only the 33 plants but the 15 legal guns Bandiny kept in his home. With each gun-used-in-the-commission-of—a—drug—felony representing a possible five years mandatory sentence, Bandiny’s marijuana charge became secondary to the potential 75 years on the gun charges he faced. The outcry from the local rural population—many of whom keep legal guns—and the character testimony of Bandiny’s former police superiors eventually convinced the prosecutor to back down on the charges, and a deal was eventually struck whereby Bandiny pleaded to lesser charges and served one year in a federal prison. “I still can't believe the Feds could charge my husband for having legal guns,” says Bandiny’s wife Mary. “If the Federal government wanted to get involved why didn’t they take the case right away? Why did they wait to see what the state was going to offer before they took over?”
While the prosecutor who handled Bandiny’s case was unavailable for comment, David Schwinderman, a United States District Attorney in Utah, defends such tactics. “There are some cases where the prosecution of a state case results in a sentence completely inconsistent with the federal policy in some fashion or other and it’s determined that it would be of strong Federal interest to have that policy vindicated.”
But, adds Shwinderman, while “the state and federal governments are separate jurisdictions—so there is no double jeopardy in such cases no matter how you look at it—there is a Justice Department policy called the Petite Policy which prevents dual prosecutions in all but a very tiny percentage of cases.”
According to the Justice Department Manual the policy “precludes the initiation or continuation of a federal prosecution following a state prosecution or a prior federal prosecution based on substantially the same act, acts or transaction unless there is compelling federal interest” supporting such prosecution. To effect such prosecution “the policy requires that authorization be obtained from the appropriate [Federal] Assistant Attorney General,” and failure to do so “will result in a loss of any conviction through a dismissal of the charges unless it is later determined that there was in fact a compelling federal interest” supporting such prosecution “and a compelling reason to explain the failure to obtain such prior authorization.”
But whereas the policy states that “civil rights cases, organized crime cases, tax cases and cases involving crimes against federal officials, witnesses or informants” are more likely to meet the “compelling federal interest requirement,” than other cases, Congress broadened the policy during the 1980s to the point where “compelling federal interest” is frequently a judgement call on the part of the Assistant Attorney General to whom a case is brought.
Scott Geider, of the Dallas Field Division of the Drug Enforcement Administration’s department of Public Affairs, agrees. “I can’t speak for the universal prosecutor but I will say there is a lot of discretion and a lot of personality built into determining what cases are accepted for dual prosecution. There are some cases that are real BS. When you look at them like a normal American you have to wonder how the hell they happen.”
One such case was mentioned in a March 29, 1993 USA TODAY article by Dennis Couchon. Tina Elliot, a first-time offender who was sentenced in 1988 to a year in a Georgia state prison for attempting to purchase a half-kilogram of cocaine from an undercover agent. She served her time and returned to her Illinois home and her five children. She took urine tests for four years while on probation and passed every one of them. Nonetheless, in January, 1993, federal prosecutors indicted her for the same crime, and she currently faces 20 years.
A second case that fits Agent Geider’ description involves Missourian Ronald Howell who was on parole from state charges of felony possession of an ounce of marijuana sprouts when 62 marijuana plants were discovered in a field adjacent to his home. Howell was arrested on cultivation and probation violation charges. His lawyer, Dan Veits, plea bargained Howell’s case to probation violation. “Howell never did admit the marijuana was his, only to probation violation,” says Veits, “which was revoked. But while he was in prison the feds filed on the cultivation case which we had dismissed in state court and thought we were done with. And as soon as Howell finished parole violation time he was tried and convicted on the 62 plants. He wound up with between five and 10 years mandatory in federal prison. Now there was no double jeopardy and the Federal prosecutor didn’t have to ask permission to retry him because he’d never been tried on the cultivation at the state level. But he was serving a parole violation on those 62 plants, and if that is not a circumventing of the idea of double jeopardy I sure as heck don’t know what is.”
Nonsense, says Carl Stern, head of media relations for the Justice Department. “You have to understand that what we’re talking about with dual prosecutions is discretion, not a question of legal barriers. When you have an offence against both sovreigns, state and federal, both sovreigns have the authority to bring a prosecution. The only question is whether you should exercise that authority.
“Congress has expanded federal jurisdiction over police matters over the years” says Stern, “but we still approach the exercise of it with great restraint. Certainly we’re not out shopping for extraneous cases to file.”
Not so say a number of defense attorneys. Marvin Miller, a criminal defense lawyer from Alexandria, Virginia described a case in which his client was arrested in Maryland on a drug charge, then was charged and convicted federally in a conspiracy to sell the exact same drugs. “Prosecutors are doing this sort of thing because they make promotions and get graded at least partly on their bodycount. So you take a guy who has been busted in a state case, throw him and some other guys into an expanded federal conspiracy, roll it around a little and inflate your numbers. I can’t tell you how many times I have seen prosecutors break up the same drug ring twice that way.”
Paul Zukerberg, a criminal defense lawyer from Washington, D.C. lays the blame for such activity at least partly on the advent of multijurisdictional task forces—state and federal law enforcement personnel working together as a unit—on the same investigations, giving prosecutors a choice of where to prosecute. “But remember,” says Zukerberg, “that every time someone’s prosecuted for drug distribution, they had to get it from somebody, so they’re part of a conspiracy. And prosecuting someone for distribution on a state charge and conspiracy on a federal charge is certainly not double jeopardy, even though it sometimes seems unfair because people think their exposure [to criminal charges] is over after the state prosecution.”
An additional element that has recently been added to the prosecutorial mix and which has added to the number of cases being filed in both state and federal court is a Department of the Treasury operation called Triggerlock. The nationwide anticrime program, instituted in 1991, is overseen by the Bureau of Tobacco, Alcohol and Firearms. According to the Treasury Department, the goal of Operation Triggerlock “is to impact on violent crime by identifying, prosecuting, and convicting hardcore, violent, repeat offenders and sentencing them for as long a period of time as is possible in Federal prison.”
Using the Federal gun laws, during its first year of operation, the ATF, working with other Federal, state and local law enforcement agencies, had referred a total of 8,852 Triggerlock defendants for prosecution or sentence enhancement. Of these nearly nearly 50 percent received enhanced sentences related to gun charges. Among those cases cited by the ATF were some of the most violent and predatory criminals and criminal organizations in the system.
But while the Operations backers point to its many successes, its detractors call it a refined form of double jeopardy, because of the techniques its operators use. Identifying criminals subject to Triggerlock is often no more difficult than looking through prison and parole records to discover those people who had firearms in their possession at the time of their criminal activity and prosecuting them for it. “The Justice Department just looks up and down the prison system, talks to District Attorneys to find out who to use this tactic against and gives defendants more time,” says Federal Public Defender Larry Kupers, from San Francisco. “One of the recent cases I defended was a guy who’d been arrested on felony possession of a weapon. While he was out on bail he got picked up again for felony possession, and went to state court. He pleaded guilty to one of the charges and was given prison time and in exchange the state dropped the second charge. But while he was in prison he was brought to Federal court on the same second felony possession charge. Now to me that is outrageous because he’d already pleaded guilty to the first in a sort of package deal and had been told that if he did that would be the end of it. And that,” says Kupers, “is not unusual at all.”
Kim Kruglick, a private defense attorney from California, agrees that Operation Triggerlock, despite putting some very dangerous people behind bars for a long time, is subject to misuse. “If a gun is involved in a federal crime there is an automatic five years—consecutive—added to the sentence, and if a gun is involved in two crimes it’s an automatic 20 years. And what’s been done is not just to implement Triggerlock as it relates to new crimes, they’re just going through the records of people in state prison who were busted on weapons charges and prosecuting them federally when they come out of prison.
“To most of us that is a sort of double jeopardy no matter how legal it is. Once somebody’s finished doing time for something it should simply be a done deal, leave them be. But here we have these guys getting out of prison and everything is going great for them and then all of a sudden they’re looking at another 10 or 12 years.”
U.S. District Attorney Schwenderman scoffs at the notion of “poor guys” getting out of prison after short state sentences on felony weapons possessions charges. “There are numerous cases where a person in a state court is arrested for a parole violation while in possession of a firearm and the state only punishes the person with six months incarceration for that offence. Well, the federal statutes address that situation with considerable more severity.”
“The real problem with all of this,” says Federal Judge Robert Sweet, “is not really double jeopardy, because the law is fairly well defined there, but in the policy issue as to which jurisdiction is going to prosecute a case. [We need] to clean up these laws legislatively because the cases are often patently unfair. And I’m afraid the law doesn’t help very much.”
Such a clean up is rumored to be in the works, particularly as regards the Petite Policy. According to Carl Stern of the Justice Department, Attorney General Janet Reno ordered the policy clarified with regards to dual prosecutions on the heels of the Crown Heights riots in New York. The case involved a black teenager, Lemrick Nelson, who was tried by the state and found not guilty for the murder of a visiting Hassid, Yankel Rosenbaum, during the height of the riots. Following his exoneration, federal prosecutors sought to get Justice Department approval to retry Nelson at the federal level for denying Rosenbaum’s civil rights by killing him. Reno has yet to permit the federal indictment to proceed in the case. “The Attorney General realized there are some differences of opinion as to the extent to which the Petite policy applied in that case, and when she received a number of different answers she ordered the policy’s redrafting in an effort to provide United States’ Attorneys a clearer guide as to when Federal prosecutions of state cases is warranted.”
But even assuming the redrafted Petite Policy clarifies some issues, others, like Operation Triggerlock, will continue to catch a number of small fish in its broad net. “As I’ve said,” notes the DEA’s Geider, “this is a discretionary business to a large degree, particularly at the level of the prosecutor. And that is a lot of discretion to give someone.