Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Some judges and juries are appropriately skeptical, but many are not. “Everybody loves a dog,” Woodford remarked. “You can imagine being an expert going in after they bring in this lovely-looking dog. That’s a hard act to follow.”

  As unreliable as the dogs may be in legitimizing a search, depending on them when forfeiting cash is more decisively unjust. The victim cannot mount a court challenge without a lawyer skilled in this specialty, which can cost more than the amount confiscated. Those targeted on the highway are often financially insecure, without credit cards, checking accounts, or the wherewithal to find an attorney who understands the complex laws of forfeiture. Most people standing on the hot pavement watching their cash disappear have no clue that legal fees can be recovered if a lawsuit is successful, and many lawyers don’t know either.

  In civil cases, as opposed to criminal, the indigent don’t usually get government-paid lawyers, and that’s the way it was in civil forfeiture prior to 2000. Then the rules were changed by a federal reform called CAFRA, requiring judges to provide appointed counsel if a primary residence is seized and allowing them to do so for other confiscated property.53 “But in most courtrooms today nobody knows to tell the judge of these provisions,” says FEAR, the Forfeiture Endangers American Rights Foundation.

  The Legal Services Corporation, whose lawyers were made available, reported only one request from the courts nationwide between 2000 and 2003, “several additional requests” the following year, and merely one a month as of February 2008.54

  It’s often worth contesting the forfeiture. Since the 1990s, reservations about dogs’ dependability have penetrated federal appeals courts. The Ninth Circuit ruled in 1994 that a dog alert was insufficient.55 The Eleventh Circuit, in 2003, decided that “the dog alert, at best, tells us that this currency (like most circulated currency) may have been exposed, at some point, to narcotics.” The dog would be significant only “when combined with more compelling evidence of a connection to a narcotics transaction.”56

  The trend is hardly unanimous, however. What some judges think is “more compelling evidence” is so vaporous that the truth-finding process seems to float untethered to facts. As recently as 2006, after more than a decade of doubts had piled up about the questionable dog alerts, a federal appeals court ruled that other factors, equally dubious, should be given weight in defining drug money. If someone simply had lots of cash, kept the money prudently out of sight, and displayed a natural nervousness when pulled over and questioned by police, the elements were ample enough to connect cash to drugs, the Eighth Circuit decided.

  By the narrow margin of 2–1, the panel overruled a district court judge who had found insufficient proof that $124,700 taken from Emiliano Gomez Gonzolez by a Nebraska state trooper was drug related. The cash had been collected for a business investment, Gonzolez explained—$65,000 from one friend, $20,000 from another, and $40,000 of his own money—to buy a refrigerator truck from a Chicago acquaintance. He’d carried the bills onto a plane from California, discovered in Chicago that the truck had already been sold, so arranged to return. Told that it was “bad” to carry more than $10,000 by air, he got a friend to rent him a car.

  Scared of being robbed, he wrapped up the cash and hid it in a cooler, a reasonable precaution. When he was stopped for speeding, he was rattled, and his nervousness propelled him to obfuscate. The two appellate judges had only one explanation for this: drugs. What they failed to grasp about their own country was something widely known in the vulnerable subcultures of immigrants. Even many who are here legally live in a twilight of anxiety, constantly alert to being violated by officialdom, especially since 9/11.

  Furthermore, Gonzolez’s mixture of Spanish and English was poorly understood by the troopers, and every slip on the side of the highway was magnified later in the judges’ minds. When asked if he had ever been arrested, he said no, although he had been, for drunken driving, as a trooper quickly discovered by computer. Then, questioned explicitly whether he had been stopped for drunken driving, Gonzolez said yes, explaining later that the trooper had first asked if he “had any crimes” or “had been a prisoner.”

  When questioned about whether he had large amounts of cash in his vehicle, Gonzolez said no. The name he gave of the car renter didn’t match the paperwork. “He said that he lied about the money and about the names of other parties involved, because he believed that carrying large amounts of cash might be illegal, and he did not want to get his friends in trouble,” the court reported. Nevertheless, he consented to a search of his car, as many frightened drivers do. A dog signaled the presence of drugs.

  Although appeals courts are not supposed to second-guess trial judges’ findings of fact, this panel did so by pretending that it wasn’t doing so. The trial judge had heard Gonzolez and his friends, who had journeyed to Nebraska to confirm his story, and found all their testimony “plausible and consistent.” But the two appellate judges, playing with semantics, called this characterization “different from a finding that the court actually believed the testimony.” Without defining the difference, they imagined it as giving them enough room to disbelieve, and so performed a rhetorical contortion.

  The opinion is worth studying, because it carries the overtones of arbitrary rule. It was written by Steven M. Colloton, nominated by Bush the Younger in 2003, and joined by Morris S. Arnold, named in 1992 by Bush the Elder.57 Their search for truth was easily satisfied, and with such facile clarity as to suggest more caprice than jurisprudence.

  First, “possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity,” they reasoned, an unusual twist on the meaning of “evidence.” Second, hiding money was essentially a confession, even if it wasn’t hidden very well. “We have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.” In this novel definition, “common sense” apparently applies to someone who is content to leave wads of cash in view of every passerby.

  Third, “Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture.” So, if you don’t want to fly back or don’t know your return date, you’re probably a drug trafficker. Fourth, “he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car.” Yet his explanation and the advice turned out to be precisely right, given that bundles of money, at high risk of being discovered by airport security, would be seized based on this very court’s loose assumptions.

  Fifth, the truck-buying mission struck the judges as incredible. “This testimony does not inspire confidence in the innocence of the conduct.” So now the man has to prove his innocence—or, more accurately, the innocence of his money, since no cop or drug agent bothered to follow up and investigate this alleged drug trafficker and the source of his funds. Gonzolez and his friends are free, after all, while considerably poorer.

  Finally, “the false statements to law enforcement officers” about his drunk-driving “criminal history,” his money, his friends, and the like added up “to the inference that Gonzolez was involved in illegal drug activity.” So “inference” is now equivalent to a preponderance of the evidence.58

  This is justice on autopilot. It is also lazy law enforcement—grab the money but not the supposed drug ring. In jumping to its conclusions, this court revealed its remoteness from the reality of America, where legions of marginalized workers can’t get credit cards, don’t trust banks, and deal in a shadow economy of cash and barter.

  There are many reasons why people conduct their affairs in cash. Not all of them are legal. Narcotics, gambling, tax evasion, extortion, bribery, and other crimes are facilitated by evading the banking system, where transactions are easily traceable in a computerized age. But some legitimate small business is also done in paper currency, and sometimes the upstanding laborers and entrepreneurs are olive-skinned
speakers of Spanish and blacks with braided hair.

  Michael Annan, a Ghanaian immigrant with dreadlocks who didn’t trust banks, forfeited $43,720 from years working at various jobs, most recently on a dredging barge, when he was stopped in Georgia. He eventually got it back, less the $12,000 he had to pay in legal fees.59

  Christopher Hunt’s $5,601 came from his auto-detailing business in Atlanta, he insisted, and he was taking it to his mother’s house for safekeeping over the weekend, when he was pulled over for speeding in Lamar County, Georgia. He was black, his braids hung down behind each ear, and he wore a sleeveless white undershirt, fitting the profile often used to stop drivers. He had a handgun on the console, properly licensed. The police claimed to have smelled burned marijuana, but they found no drugs in the car. He was not given a ticket, but his cash was taken from his pockets to the station, where a dog smelled drug residue.

  When the money was deposited, a bank teller identified two $10 bills as counterfeit; the balance was turned over to the DEA, and to what his lawyer, David Smith, called an “incredibly stubborn” federal prosecutor, who insisted on the forfeiture despite the relatively small amount. Smith accused the feds of “pursuing this on behalf of a corrupt local sheriff’s office, which seized the money and has a pattern of doing this and basically robbing black motorists on the highway when they find them with a lot of currency.” Smith learned later that Hunt had an arrest record (not for drugs, though, and with no conviction), making him a more likely suspect; he got only half his money back in a settlement.60 NPR found fourteen other such currency seizures in the same county during the previous four years.61

  These official assaults on currency sometimes backfire on the government. Javier Gonzalez lost $10,032 in profits from his used-car lot in Austin, Texas, when sheriff’s deputies ninety miles north of the Mexican border pulled him over. He was on his way to buy a vehicle, according to an NPR report, and he filed a federal civil rights suit, eventually winning not only his money back and his legal fees but also $110,000 in damages.62

  In the case of Benjamin Molina, the man with the pain in his voice, the DEA “even did a sophisticated ion scan test” on the money, said Smith, his lawyer. “The prosecutor sent them to me. This purported to show that Molina’s money had twice as much cocaine on it as ordinary money in circulation.” Yet he got the bills from a bank, as his receipt proved. “The test may be perfectly accurate, I wouldn’t know. So what? He didn’t put the cocaine on the money. He got it from a bank.”

  Molina remains nervous, because he still makes that drive through Emporia on his way to and from North Carolina. So I took the liberty of explaining that under the law, he didn’t have to consent to a search. He uttered a sound of surprise. I explained again. He replied: “Then they will arrest me. They do whatever they want with the law.”

  CHAPTER FIVE

  Below the Law

  May Allah bless America.

  —Imam Mirja Abu Beig

  THE TRAPDOOR

  IF YOU ARE ARRESTED for a minor crime—shoplifting, say, or stealing a lottery ticket from the 7-Eleven where you work—your lawyer might suggest that you plead guilty even when you’re innocent, as Evelyn Greene’s advised. In exchange, she was sentenced to ten weekends of community service rather than jail time.

  But then, if you are not an American citizen, as she was not, you could end up behind bars anyway on your way to deportation. No matter that her husband and three children held citizenship, or that she had years of legal residence in the country after fleeing civil warfare in Liberia, or that she dutifully applied to renew her work permit. That’s when she was caught, appearing obediently at immigration offices to provide more information, as requested. The request was a ruse to get her there, so she could easily be jailed under a merciless federal law that gives practically no grace.1

  Deportation is the immigration system’s most decisive sanction, and it targets two main categories of foreigners: those who overstay their visas or smuggle themselves into the country, and also legal immigrants who have been convicted of crimes, such as Evelyn Greene. Both groups contain relatively benign offenders: The “illegal aliens” include long-term residents who have established families and businesses, paid taxes, and provided essential services. The criminals include the pregnant shoplifter and the casual pot smoker. Yet the penalty of “removal,” as it is officially called, cannot be calibrated with a sense of proportion. It is absolute, blind to the varied situations of the real people it punishes.

  We citizens have decided that we do not want in our midst noncitizens convicted of what federal law terms “aggravated felonies” or “crimes involving moral turpitude,” so our Congress has made “removal” mandatory for vast categories of misbehavior much less serious than those labels indicate. “Aggravated felonies” include offenses that are neither aggravated nor felonies, but mere misdemeanors under some state statutes. The law sweeps away not only the gangster, the drug dealer, the forger, and the murderer but also practically anyone who commits (or admits to committing) a crime deemed so minimal that the court imposes the lightest of sentences: probation or community service. The heaviest sentence of all, the one you cannot contest before an independent judge or jury, may be the loss of your adopted country.

  Evelyn Greene was pregnant. Since everyone born in the United States is automatically an American citizen, her fourth child would be delivered simultaneously into the privileges of citizenship and the restraints of Virginia’s Hampton Roads Regional Jail. This prospect made her weep, and it made Debi Sanders, a visiting pro bono lawyer, weep with her.2 It can take months to arrange deportation, meaning months of imprisonment.

  Hampton Roads was the most humane of the jails visited regularly by Sanders’s team of lawyers, and therefore the only one that would allow me inside to have a look. Its two superintendents, one white, one black, came with interesting résumés: David Simons had gone to law school after years as a cop, including as police chief in a small Virginia town. Moses Pollard was a licensed Baptist minister. They tried to keep the jail decent by keeping it accessible. Teams of volunteer attorneys, GED tutors, writers like me, and other visitors were welcomed. “We are always open to scrutiny,” Simons declared, a contrast with most prisons.

  He and Pollard sat down routinely with lawyers who had just made rounds and had talked with inmates. It was a remarkable scene: around a conference table, the attorneys conveyed complaints from prisoners to the two superintendents and several guards, who took notes and, lawyers said, actually acted on the problems. In many other local facilities contracted by the federal government to hold immigration detainees, the prevailing routine included epithets, physical abuse, and medical neglect.3

  Nonetheless, Hampton Roads is what it is supposed to be: a prison, an oppressively high-tech, soulless, antiseptic array of large boxes of white concrete built in 1998, each box a “pod” connected at a central control room. “No Weapons or Ammunition Beyond This Point,” says a red sign at a metal detector. The guards, in pressed uniforms of dark green, smile and wave, as if they too were inmates happy to have their boredom relieved by visitors.

  The windowless hallway, its gray concrete floor painted with yellow lines as boundaries for inmates as they move, has an austere smell of artificial hygiene, as if cleanliness were as sacred as security. Entering a pod is like moving through an air lock: A door heavy with thick glass slides open electrically, we step into a compartment facing another door, the first door slides closed behind us with a swoosh and a thump, then the second opens, and we walk through. It closes, sealing us into the central guard area, where we stand before a looming control room that is raised above the floor like an airport tower. Through its windows, the guards who are secured inside can see us, and they can speak to us through an intercom. They check our names against a list, then direct us toward another air lock into one of the pods.

  The lawyers, organized by the Capital Area Immigrants’ Rights (CAIR) Coalition, are trained to sort quickly through i
nmates to find who might be helped. There is no point devoting precious volunteer hours to prisoners who have already hired attorneys, or to those facing inevitable deportation, as most are. Only where the lawyers discover people who may have a case but no lawyer do the volunteers, many from high-rolling Washington law firms, zero in.

  Unlike poor criminal defendants, whose Sixth Amendment right to counsel has been interpreted by the Supreme Court to require the government to pay for indigents’ attorneys, immigration detainees come under civil law that gives them “the privilege of being represented” but “at no expense to the Government.”4 So detainees have the right only to attorneys they can afford or can get to work for free; the executive branch has never provided immigration lawyers for the poor. Their “privilege” derives from the Fifth Amendment’s vaguer guarantee of due process, not the more specific right to counsel, and can therefore be manipulated more easily by administrative rulings.5

  Still, there is little that lawyers can do for most immigrants convicted of crimes, even if they have been in the country legally for many decades. The law, as amended by the Republican-led Congress in 1996, opposed by President Bill Clinton’s immigration officials, but signed by Clinton nonetheless, added numerous crimes retroactively to the deportable list, making noncitizens subject to removal for offenses committed before the law was passed. The Supreme Court in 2001 limited the retroactivity by ruling that immigration judges could waive deportation for guilty pleas prior to 1996, but not for convictions in trial.6