by Matt Taibbi
Breuer, meanwhile, was in the process of moving back to private practice. That same month, he returned to Covington & Burling, which in an extraordinary coincidence was already representing Citigroup in a major class-action lawsuit filed over LIBOR rigging. His firm was one of a group of defense firms that argued that the suit should be dismissed on the grounds that the setting of rates was not really a competitive process, and that while municipalities and states and pension funds and other entities that lost money when LIBOR rates were artificially depressed may have been defrauded, they weren’t victims of antitrust violations. “The plaintiffs, I believe, are confusing a claim of being perhaps deceived,” a defense lawyer from another firm argued, “with a claim for harm to competition.”
The judge in the case bought this bold and ballsy argument, and the main civil LIBOR suit was dismissed, meaning that while British and American regulators had taken in upward of $4 billion in fines, the actual victims of the manipulation would likely get nothing.
But Holder’s testimony had at least ended the mystery. It was obvious now that the once-modest selective-leniency idea that he had cooked up in 1999 had grown exponentially and was now loosed from its cage, running wild in American society like a strung-out lab animal, wrecking things and mutating by the minute. It had gone from a simple tool to save a few jobs to a magical thing that was enabling the transformation of the world’s biggest banks into bona fide organized crime operations, companies that had now gone far beyond shredding a few documents and were engaged in everything from rigging energy prices to manipulating interest rates to drug trafficking.
Privately, there was a furious debate in Washington and on Wall Street about the efficacy of the new policy. Many people made the very sensible argument that it would indeed be economic suicide to indict and perhaps destroy such systemically important companies as UBS and HSBC, and that such actions would devastate the world economy in ways that indicting, say, Abacus Federal Savings Bank had not.
But this argument didn’t make sense with regard to individuals, and if you thought about it, it didn’t make sense with regard to companies, either. “You can’t just say, ‘We can’t indict because they’re too big’ and then just throw up your hands,” says Barofsky. “If a bank’s size is the only thing preventing you from indicting, making the bank smaller should be a condition of the settlement, so it doesn’t happen again. If you’ve got them by the short hairs, you’ve got to make them break up.”
This, ultimately, is the obvious flaw in the “systemic importance” argument. The Justice Department could rationally make that argument exactly once. If it let an HSBC or UBS skate on systemic importance grounds, but then allowed that same company to retain its dangerously outsize systemic importance, it would simply be inviting more violations. Minus any effort to make the companies safer for prosecution, Collateral Consequences appeared far more likely to be what some line prosecutors believed it to be—an excuse that allowed incompetent and lazy officials with a defense-lawyer mindset to avoid difficult contested trials and simply take cash up front and declare victory for the cameras.
None of the settlements proposed anything like breaking up the companies, or even hinted at a thwarted desire to bring white-collar offenders to trial. Instead, the new public relations strategy seemed to be to try to pass off these financial settlements as the best-case scenario for justice in a complex new world.
The attorney general of the United States was saying that the economy had grown so complicated that his own office was now and henceforth helpless to decide on its own when it was okay to prosecute, that before it moved against any high-powered target, it needed to ask the “experts” on Wall Street if the economy would survive such an action.
Of course, it wasn’t like that on the streets anymore. On the streets, more than ever, they arrested first, asked questions later.
On December 14, 2011—almost exactly one year before the HSBC settlement was announced—two black men in their forties, lifetime friends named Michael McMichael and Anthony Odom, made the mistake of driving a nice-looking white Range Rover in the South Bronx.
The two guys were ex-cons who had been in the game decades ago, in their youth in Brooklyn, but had now gone straight. “You get tired,” says Anthony, a seventies-cool dude in pitch-black shades and a Walt Frazier cap. He had just taken a test to work in the MTA. His buddy Michael sported a shaved head, gold-rimmed glasses, careful grooming, and a single long chain with a cross around his neck. He looked like a city preacher, the kind of retired tough guy who could conduct a Scared Straight seminar.
The two men were driving from a Dunkin’ Donuts on 163rd Street to a BP gas station on 161st Street and Washington when they stopped at a red light. Suddenly a pair of policemen appeared at each door. The police promptly pulled the two men out of their car and tossed them into a van that had driven up behind them, appearing out of nowhere.
Before they even had a chance to breathe, Michael and Anthony had their hands behind their backs, cuffed to the walls of the van, headed for God knows where, for who knew what reason. “What the hell …?” they asked each other.
Did the police say anything about why they’d been picked up? Did they ask them questions, tell them what they were being charged with?
“You clearly don’t know the New York City police,” says Anthony. “They don’t be asking you anything.”
The van screamed all over the Bronx, and the two men, who hadn’t been in a police car in ages, worried quietly as they listened to the chatter on the radio. They worked out the method: an undercover policeman on the ground somewhere would stand on a street corner, wander over to a group of people, then walk off and whisper into his jacket, “These four.”
They later found out the undercover cop is called a “ghost.” When the ghost says the word, backup arrives, and whoever the ghost points to gets chucked into the van. After an hour or so, the van was starting to fill up. The cops and their ghosts were scooping up dope fiends and tossing them into the back of the truck. Other times, the ghost picked out suspects on the street, and the police in the backup crew snatched the wrong people—for instance, they grabbed a woman, when the ghost had been directing them toward a group of men.
“They weren’t even getting the right people,” says Anthony. “They were just getting bodies.”
Nor were they bothering to search their detainees before they raced off to the next body snatching. In the second or third hour, Anthony, his hands starting to ache badly, looked down and saw something amazing. One of the fiends the cops had grabbed was wriggling his hands around in his cuffs, trying to pull his works out of a secret pocket in his jeans. The dude was trying to shoot heroin in the back of a police van, with his hands cuffed!
Anthony wriggled sideways, but he had nowhere to go. “I’m like, what if this guy sticks me? What do I do?”
Michael was watching that scene in horror but also still listening to the radio. When there were about four or five bodies in the van, he heard the ghost’s voice come over the radio. “He’s like, ‘We need three more.’ ”
Michael cocked his head and thought: They’ve got a quota?
As Michael told his story, something clicked in my head. A few weeks before I met Michael, a public defender had told me, with a smile, to go take a ride on the M35 bus from East Harlem to Ward’s Island. Didn’t completely explain what it was about, just told me to take a ride.
So I took the ride, which began on East 125th Street, across the street from a Jamaican chicken place. I hopped on, stuck in my MetroCard, then rode to the last stop, where I found myself in a dismal expanse of institutional buildings, one of which was a drug rehab clinic, another a mental hospital, the third a homeless shelter. I wandered over to the rehab center and talked to two guys in the program named Domingo Soto and Frankie Rivera who were doing chores, taking the trash out.
“Yeah, man, the UCs hit the bus about twice a week, looking for fare beaters,” said Soto. “The rule is, every cop has to br
ing home a body.”
“A body?” I asked.
“Yeah,” he said. “If you got four cops, they gotta bring home four bodies. There’s a van hiding somewhere. If they only get two fare beaters, they stick ’em in the van, handcuff ’em, then go out searching for the other two.”
“They send undercover police out to bust homeless fare jumpers?” I asked. “To bust homeless fare jumpers on their way to a homeless shelter?”
I thought the whole point was to get them to the shelter.
“Uh-huh,” Rivera said. “Twice a week, they sweeping that bus. It’s a shame, too, because you be losing that bed in the shelter when they take you in.”
So I told this story to Michael, the man who got arrested for being black and driving a Range Rover in the South Bronx. He wiped his bald head and thought. “Yeah, come to think of it,” he said, “there were about eight people involved in that operation. And they got eight of us.”
He went on. After riding in the van all day, the two men were dragged back to the Forty-Second Precinct in the Bronx and sent to the precinct cells. Arms free, the dope fiends started shooting up for real now.
“I couldn’t believe it,” said Michael. “I was actually embarrassed for the cops, for their professionalism. Right there in the cells, they were shooting her-on.”
At the precinct they found out, finally, that they were being charged with suspicion of possession of marijuana. That’s the way it would show up in their complaint, that an officer smelled the drug somehow from a distance.
“It’s winter,” Michael explained. “We got the windows rolled up, and they’re smelling marijuana from outside the car somewhere. From across the street, I guess.”
They soon got released on their own recognizance, but with a case still on their heads. For the next year, they kept asking the police to produce the supposed marijuana. They offered to pay for a DNA test if any kind of drug was recovered. The police never did produce the elusive joint, but as time went on, the DA started offering the two men deals.
“They’re like, ‘Just plead and pay a twenty-five-dollar fine,’ ” says Michael.
“Then it was community service,” says Anthony. “They’re like, ‘Just take two hours of community service.’ Then, when we said no, they were like, ‘Why won’t you take it? It’s just two hours.’ ”
Michael and Anthony, like Tory Marone, had been caught up in a new kind of law enforcement technique. The basic principle in both cases is volume arresting. It’s fishing for crime with dynamite. In bad neighborhoods, in immigrant neighborhoods, in parks and alleys, you arrest first, ask questions later.
In Michael and Anthony’s case, the police undertook their own kind of cost-benefit analysis. If you toss a nice-looking truck with two black men in it, you have a good chance of catching a gun, drugs, or a fugitive on a warrant. Bring ’em all in, shake the net, see what wriggles.
“They’re fishing with a big net,” says Michael. “And they were catching some people, too,” he added, referring to the dope dealers and users.
Of course, if you police neighborhoods that way, you’re going to get some innocent people, too. But the system doesn’t work in reverse. It doesn’t admit error; that would look bad. So what it does is it moves cases forward anyway, even when there’s nothing there.
It took a full year for the city to drop the charges against both men, and that was only after the state begged, practically on its knees, for both men to accept some kind of guilty plea. Only when they refused for the umpteenth time, and the city finally admitted that it had no case, was the matter dropped.
In the course of that year, Anthony lost out on the MTA job. The drug arrest had rendered him ineligible. It was a classic instance of a collateral consequence, but this was the acceptable kind. Some black guy from the Bronx losing a job, what’s that compared to the principle of keeping a serially offending British money launderer and admitted ally of the world’s most vicious drug cartel in business?
“Who cares about me?” says Anthony. “They don’t care. Obviously.”
After the New Year in January 2013, I took the F train across Manhattan to Queens, hopped on the Q100 bus at Queensbridge, and rode to Rikers Island. When you get to Rikers, there’s a long line of people, almost all of them black or Hispanic, most of them young, most female. They’re bringing packages of socks and underwear, money for the commissary, things for their sons and grandsons and boyfriends.
At the front gate you take all your valuables and put them in a locker, then you go through the metal detectors and get to a parody of an airport terminal—a bunch of beat-to-hell waiting gates covered in pen scratches and graffiti, where visitors are gathered to wait for the buses that will take them to the dorms. On this side of the Divide, everything takes forever, and long lines are part of everyday life.
After I found the gate I was looking for, and got two left-hand fingerprints scanned while I registered for a visit, a young black woman saw me checking a clock and laughed.
“It’s gonna be four hours, honey,” she said.
“Four hours total, or four hours from now?” I asked. It had already taken an hour and a half to get inside the building.
“Four hours from now,” she said. “Maybe three.”
I shrugged and waited. She was wrong, fortunately—the shuttle came pretty quick, a blue-and-white-painted school bus into which the driver hustled us, telling us that the Eric M. Taylor Center, or EMTC, was the second stop. We got out there, walked to a grim one-story building entrance that looked like an abandoned ice station in Alaska, or maybe a Soviet drunk tank. At the door a corrections officer stopped us and trained our attention on a wall full of Polaroid photos of young and mostly Hispanic men with their heads and necks split open. In one picture I could swear you could see a sliver of larynx. The idea was to impress upon us what happens when you bring in contraband and inmates fight over it.
The officer barked at us, “You bring contraband in here, you’re not going home. You bring in money past that line”—he pointed to a doorway two feet in front of me—“or any kind of ID, it’s a felony. One to three years. You’re not going home today, you got that?”
I emptied my pockets into another locker, took off my hat and sweatshirt and belt, walked inside, then went through a half strip search conducted by a female officer who made me pull my pants halfway down, a search seemingly intended to be humiliating without being terribly effective. Then it was lots of time in a waiting room watching a too-loud broadcast of an asinine show called Judge Alex that you couldn’t turn off, in which a no-necked, steroidal TV judge referees idiotic family disputes between mostly black and mostly obese defendants, dressing them down with big words and high volume when they get out of line. The room full of black women watched the program carefully, almost spitefully—there was nothing else to do.
Eventually they brought us into the visiting room. It’s a gymnasium, a basketball court, only with a series of cheap little round tables laid out in rows, each one with two beat-up plastic patio chairs facing each other. Wordlessly, the guards began bringing in the inmates. A long line of young black and Hispanic men in gray jumpsuits filed in, each one taking a place opposite his girl or mom or kids. I was the only male visitor in the place.
Finally they brought in Tory. His jumpsuit was a different color—lime green. He started my way, and they made him stop and hand over a rosary necklace first. He walked with his shoulders hunched over, his face expressionless. As a journalist, I was searching for some kind of story from him about how scary it was inside, but he’d been practicing the I’m-not-scared look his whole life. He wasn’t bad at it.
I asked him about the green jumpsuit.
“Got caught with contraband,” he said. “They found money on me. This marks me as having fucked up.”
They gave him seven more days for that, bringing the total to forty-seven. He shrugged: no big deal. One thing he did complain about was the food. “If you don’t get food from the commissary, it�
�s not enough,” he said. “You get hungry.” Apart from that, it wasn’t so bad. He wasn’t going to be there long enough to get a job, so all he could do was wait out the days, watch TV, walk in the yard.
He didn’t even ask me what I was doing there, why I was visiting him, who I was. So I had to bring it up myself. Not expecting him to care, I told him that I’d found him at random, by looking for someone in New York who’d been sentenced to jail time for a stupid drug charge at exactly the moment the government was announcing, in New York, that it wasn’t going to seek jail sentences for anyone in the biggest drug-money-laundering case in history.
He nodded. “Okay. So they arrest someone like me instead, is that it? That’s what your book is about?”
“Basically,” I said.
He nodded again and instantly forgot what we were talking about. “I’m never coming back here, though, I promise you that,” he said, apparently thinking he had to lay the same line on me all prisoners reflexively lay on authority figures. “I’m getting a job when I get out. I’ve got it set up.”
“Okay,” I said.
We moved on to some other stuff, then a few minutes later he came back to the topic of his arrest. “I’ll tell you one thing I do know,” he said. “It’s not about what you do. It’s about who you are. Like I know, if I’m in Manhattan, I go to the Upper East Side, I go to Eighty-First Street, I’m getting arrested.”
Tory Marone is one of the few white people you’ll see in New York who looks like an obvious candidate for stop-and-frisk. He looks rough enough that someone might call the police if, say, he walked into a Hugo Boss store. As I would later find out, though, the definition of “appropriate target for police harassment” is expanding.