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News and Features
As Mexican president Vicente Fox begins his historic administration, the most difficult and abrasive issue that both he and the United States must confront is the continuing flow of immigration fr
John Ashcroft took office swearing on a stack of Bibles--on three of them, actually, one for each of his children--to run "a professional Justice Department that is free from politics." Sure.
Estrada is gone, but corruption remains.
What's at stake in faith-based politics
As busy as he is these days, George W. Bush should take time out to see Traffic, Steven Soderbergh's new movie about the war on drugs. For, in coming days, Bush must name a new drug czar, and seeing this movie could--and should--affect his choice. Traffic contains the usual disclaimer about its characters bearing no resemblance to real individuals, living or dead, but it is in fact a thinly veiled attack on the drug policy of the Clinton Administration and its outgoing drug czar, Barry McCaffrey. (As he prepares to leave office, Bill Clinton has suddenly become a drug reformer, calling for the decriminalization of marijuana and the overhaul of federal sentencing guidelines for nonviolent drug offenders. Where was he when we needed him?) In the movie, the drug czar, like McCaffrey, is a military man, and as in Washington, the Office of National Drug Control Policy has been taken over by the military and law enforcement. And as in real life, the White House is preoccupied with stopping the flow of drugs from Latin America into the United States.
In Traffic, Soderbergh dramatizes the real-life futility of that undertaking. Having written about the drug issue for years, I expected the movie to take many Hollywood-driven liberties with the facts. At points, the movie does lapse into melodrama; overall, though, it depicts US counternarcotics efforts with dead-on accuracy. In making the film, Soderbergh gained the cooperation of the US Customs Service and the Drug Enforcement Administration. When a Customs official complained about aspects of the script, Soderbergh let him rewrite part of it. The DEA felt so comfortable with the director that it allowed him to shoot a scene inside the El Paso Intelligence Center in Texas--the first time a film crew was ever allowed inside the surveillance complex.
Often, access leads to co-optation, but not in Soderbergh's case. On the contrary, the input from law enforcement, by increasing the movie's verisimilitude, has added to the force of its indictment. One drug agent in the movie acknowledges that the traffickers have access to telecommunications devices far more sophisticated than anything the DEA has. A Customs officer concedes that for every drug shipment that gets seized, several others get through. A trafficker in a witness-protection program chides a DEA agent about the hopelessness of his effort to bring down a smuggling ring--even if he succeeds, others will quickly fill the gap.
Soderbergh's main vehicle for getting his message across is Robert Wakefield, a tough-on-crime state Supreme Court judge in Cincinnati (played by Michael Douglas). After being selected to become the next drug czar, Wakefield prepares for the job by going out into the field. At every stop, he is confronted by evidence of the drug war's failure. On a plane ride back from the border, the judge--surrounded by military officers--asks for new ideas in fighting the war. He is met by total silence.
What finally pushes Wakefield over the edge is his own 16-year-old daughter's descent into cocaine addiction--a subplot that's one of the movie's main weaknesses. Within a matter of days, the teenager goes from perky straight-A student to freebasing zombie who sells her body for drugs. Shades of Reefer Madness. Furthermore, the movie strongly implies that it is suburban whites like Wakefield's daughter who make up the heart of the nation's drug problem--indeed, every drug user depicted in Traffic is white and well-off. Of course, many privileged whites do abuse drugs, but so do plenty of poor African-Americans and Latinos. It's as if Soderbergh can't trust us to sympathize with drug-using minorities. This distorts the nature of the challenge facing drug policy-makers: The movie's addicts are all so well-heeled that they can pay for rehab out of pocket, but if treatment is a superior way to deal with drug abuse, as Traffic suggests, then the government will have to do much more in the way of providing it.
When Wakefield finally tracks his daughter down to a squalid flophouse in inner-city Cincinnati, he realizes that drug abuse is a deeply rooted social problem that cannot be fought with helicopters, guns or wiretaps. At the press conference to announce his appointment, the judge interrupts his prepared, cliché-ridden speech to ask, "How do you wage war on your own family?"
More and more Americans are asking the same question. Almost every time a drug reform measure has been put up for a vote, it has passed. In November, voters in California--tired of paying for ever more prisons--approved a referendum to treat, rather than incarcerate, nonviolent drug offenders. In Manhattan, increasing numbers of prospective jurors are being dismissed after expressing their reluctance to serve on cases involving low-level drug offenders. In early January, New York Governor George Pataki announced his intention to "dramatically reform" the notorious Rockefeller drug laws. The crowds lining up to see Traffic offer further evidence of the changing public mood.
How will Bush respond? On the one hand, he has repeatedly voiced sympathy for people dependent on drugs and alcohol. He has spoken frankly about his own drinking problem and how he managed to overcome it by religious faith. On the other, as governor of Texas, he presided over the nation's largest prison system, and he has seemingly never encountered a drug law he didn't like. Moreover, by invoking only the faith-based form of treatment, he leaves the impression that all addicts need to get well is to open their hearts to Jesus. Most troubling of all is Bush's nominee for Attorney General. Whenever he's had the chance, John Ashcroft has pushed for an intensification of the drug war. He belongs to a group of hard-core Congressional Republicans who have helped stymie all efforts at reform.
At a screening of Traffic in Washington last fall, Bill Olson, the staff director for Republican Senator Charles Grassley's drug caucus, walked out after Michael Douglas's bailout speech. "Shame on you!" he scolded Soderbergh--testimony to the strong emotions the movie is stirring and the stiff resistance its message is facing in Washington.
Police are up to old tricks: disrupting and spying on legal political activities.
When George W.
Far more federal investigators. Many more prosecutions of illegal immigrants. The continuing dominant role of the war on drugs. A decreasing emphasis on white-collar crime. More and more time required for the completion of criminal prosecutions. The unchanging reluctance of federal prosecutors to deal with brutal police officers. Fewer audits for corporate America.
Those are some of the important ingredients of the Clinton legacy. While President Clinton's influence was felt throughout the federal government, it is in the area of law enforcement that some of his Administration's most striking aspects can be documented. Considered together, they point to an Administration that, while talking about liberal values, was extremely successful in capturing the political support of a law-and-order constituency that for many years had mostly backed the GOP.
Often, the role of the White House was relatively minor. But since President Clinton has casually claimed credit for many good things that happened, whatever the size of his contribution, it seems only fair to judge his performance by that same standard. And based on such a review, it is clear that George W. Bush should have little trouble carrying on much of the Clinton tradition.
Headcount and Spending
Perhaps the most startling development of the Clinton years was the change in the basic makeup of the federal government. During the recent election campaign, one of Bush's favorite lines concerned Vice President Al Gore's alleged lust for big government. But as Gore noted in very general terms, the federal government shrank during the Clinton years. With the end of the cold war, the number of uniformed personnel in the military went down. Significantly, however, the 1999 federal payroll listed almost 25 percent fewer civilian employees--in relation to population--than it did in 1992. Meanwhile, the number of criminal investigators was increasing. In 1992 there was one criminal investigator for every thirty federal employees. In 1999 there was one criminal investigator for every twenty employees. With no room for discussion, Clinton is leaving us with a government that has become more concerned with enforcing the law and investigating the people, and less able to provide the public with a range of other services.
Given the overall decline in government employees, it is not surprising that direct federal expenditures did not increase during these years. In constant dollars, payments amounted to $5,694 for each American in 1992, $5,647 in 1999.
An agency-by-agency breakdown of the changes in federal spending, however, provides additional insight about the government's increasing enforcement and investigative roles. We have already mentioned the decline in military personnel. Measured in constant dollars this drop was substantial: from $1,034 per person in 1993 to $871 in 1999. But, accelerated in part by Vice President Gore's "reinventing government" effort, spending by many agencies not under the Defense Department umbrella, including the departments of Agriculture, Treasury and Housing and Urban Development, also declined. The EPA was down 15 percent, other regulatory agencies dropped by 29 percent, the Energy Department was off by 28 percent and NASA dropped by 21 percent.
But hold on. A few agencies bucked the downward trend. Leading this much smaller pack was the Justice Department, where constant per capita spending jumped by 72 percent.
Why is this? Well, with Clinton and the Republicans competing to outspend each other in funding the always popular "war on crime," the startling success of Justice in the budget battles was predictable. Although the Immigration and Naturalization Service (INS) and the Bureau of Prisons were among the biggest winners within the department, it is also worth noting that the Clinton Administration's FBI is larger today--both in raw numbers and in relation to population--than at any time in history, including World War II, the cold war and the period of civil disturbances related to the Vietnam War and after the assassination of Martin Luther King. Individuals listed with the occupational specialty of "intelligence officer" nearly quintupled, jumping from 224 to 1,025.
More federal enforcers and more enforcement dollars might be assumed to translate automatically into more federal prosecutions. But over the years, while the number of prosecutions has edged higher and higher, the annual number of such actions has varied: It was relatively high in 1993, slumped significantly in 1994 and then began going up again. According to Justice Department data, upon which most of this analysis rests, the prosecution count jumped sharply in 1998, to 82,071. (Because the department has withheld 1999 data from us, enforcement information about the last full year of the Clinton Administration is not now available. But court data suggest that in 1999 federal prosecutions reached an all-time high.)
§ Immigration. Immigration matters made up a major part of the recent spurt in indictments. In fact, such actions more than doubled during the Clinton years, jumping from 7,335 in 1993 to 14,616 in 1998. (Once again, court data indicate that immigration prosecutions continued their dramatic rise in 1999.) The recent jump in immigration prosecutions is the major reason that the overall number of federal court cases has increased at a faster rate than at any time since the Nixon Administration launched the war on drugs and ordered federal prosecutors to go after Vietnam War draft dodgers. The surge in immigration prosecutions followed an agreement by the Administration and Congress to step up border control efforts through the simple expedient of hiring many more INS agents.
§ Drugs. For many years the effort to combat the sale and use of illegal drugs has dominated the federal enforcement agenda. From 1993 to 1998, for example, drug cases consistently made up more than one-third of all federal prosecutions. By comparison, fewer than one out of ten prosecutions during the same period were classified by the Justice Department as involving official corruption, environmental and regulatory matters. The sharpest increases in the annual number of federal drug prosecutions came during the Reagan and Bush years. By contrast, in the early Clinton years drug prosecutions actually declined slightly and then began inching higher, reaching 30,014 in 1998. This total is more than three times the 8,938 such actions in 1981. (The overwhelming impact of the drug war on the federal system is hard to exaggerate. In recent years, for example, drugs have been the criminal offense involved for 42-45 percent of all people sentenced to prison.)
§ Guns. By contrast, there was one specialized area that went through an extraordinarily steep decline during the same period: the enforcement of the nation's gun laws by the Bureau of Alcohol, Tobacco and Firearms. Referrals by ATF for federal prosecution declined by 44 percent from 1992 to 1998. (In fairness, the court data suggest that an increase in weapons enforcement actions that began in 1998 continued in 1999.)
A key factor behind the surprising drop in ATF referrals during most of the Clinton years was a 14 percent cut in ATF criminal investigators, mandated by Congress but accepted by the Administration's strategists. Many experienced enforcement officials believe that a second important explanation for the collapse of the ATF was its 1993 raid on the Branch Davidians in Waco, Texas. Their argument: The widespread public criticism of this flawed action profoundly undermined the agency's morale and its will to enforce the law. But no one should forget that the ATF raid itself and the FBI's subsequent horrific effort to end the hostage situation were also dismal parts of the Clinton legacy.
The sharp decline in ATF referrals in the 1992-98 period became a significant political issue in the presidential campaign when the Republicans and the National Rifle Association teamed up to attack the Administration's enforcement priorities. With some legitimacy they joined in asking why Clinton used a series of shooting incidents during the period to make high-publicity requests that Congress pass new gun-control laws when his Administration was not fully enforcing the ones already on the books. Because Congress was ultimately responsible for cutting the ATF budget, the Republican criticism also contained a good dash of hypocrisy.
§ Police Brutality. Sometimes the priorities that go unchanged, the dogs that don't bark, are as revealing as those that do. One example: When local jurisdictions fail to punish brutal police officers and prison guards, the federal government has the option of bringing criminal charges against the offenders, usually under one of two laws. But for many years federal prosecutors have been reluctant to pursue this approach. During the past twelve years, federal prosecutors appointed by both former President Bush and President Clinton have obtained indictments in only 3 percent of all such matters referred to them by the FBI. (By comparison, federal prosecutors have consistently prosecuted a much larger proportion of the matters presented to them concerning another kind of government abuse--official corruption.) In 1998, for example, 48 percent of these other matters resulted in an indictment. Thus the Clinton legacy in this sensitive area simply continued the federal practice of the past quarter-century under both Democratic and Republican Presidents.
The Wheels of Justice
In addition to the specifics of what laws were or were not enforced, the data we have obtained and analyzed also highlight broader problems in the federal justice system. One concerns the startling long-term increase in the time required to complete a case in federal court. At the beginning of the Reagan Administration the median time was ninety-nine days. At the end it was 130. At the beginning of the Bush years the median was 141 days; by the end it was 160. The pattern continued during the Clinton Administration: 168 days in 1993, 205 in 1998. Although the legislature writing the laws and the judges administering the courts bear some responsibility for this explosive change, the vast discretionary powers of the prosecutors appointed by Reagan, Bush and Clinton make them the first among equals.
The doubling of federal prosecution time raises troubling management and budget questions for the Justice Department and the courts. But for those who believe in the American ideas of fairness, and for the hundreds of thousands of defendants being processed through the federal assembly line, there is a second obvious question: Can anyone doubt that justice delayed is justice denied?
The initiation of criminal charges is not the only way the government works to persuade the American people to do the right thing. A second option is for the government to impose administrative sanctions outside the courts. One of the most conspicuous users of this second kind of federal authority is the Internal Revenue Service. Fully acknowledging that IRS policies are heavily influenced by the decisions of Congress, the tax enforcement patterns of the past few years remain a major part of the Clinton legacy, especially given the vast reach of this agency.
One striking reality here is the sharp decline in all kinds of tax enforcement. During the Clinton years, the overall audit rate for individuals has dropped by half, from 0.66 percent to 0.31 percent. During the same period, corporate audits went through a similar decline--2.9 percent in 1992, 1.51 percent in 1999. The decline in the audit rate for the largest corporations--those with assets of more than $250 million--is also noteworthy. In 1992 more than half of these giants were audited. In 1999 the rate had dropped to only one in three.
As just noted, the Clinton Administration is not solely responsible for the broad degradation of the IRS's enforcement presence. During the past few years conservative forces in Congress have mounted an intense rhetorical attack on the agency, which resulted in budget cuts requiring a reduction in the number of expert revenue agents who have the skills to audit upper-income and corporate tax returns. The tax man has in fact been taking it on the chin for a long time. After a substantial buildup of the IRS during the Reagan years, full-time staff is now 31 percent smaller than it was in 1988, when the cutbacks began.
This decline, and other factors that hit the agency in the early 1980s, have resulted in a dramatic shift in how the American people experience the IRS. In fact, the proportion of taxpayers now required to go through the traditional "face to face" IRS audit is five times lower than it was in 1981.
Perhaps the most surprising Clinton-era development occurred last year when--reversing past practice--low-income taxpayers suddenly stood a greater chance of being audited than high-income taxpayers. Because wealthy taxpayers obviously have more to hide from the government and better opportunities for hiding it, the IRS has historically focused its audits on the rich. In 1999, however, the audit rate for those making $100,000 or more was only 1.15 percent. At the other end of the scale, the rate on simple returns reporting $25,000 or less was 1.36 percent.
The data suggest that the federal government President Clinton leaves behind has become less able to serve the traditional needs of the American people but better equipped to investigate and prosecute them. Clinton gave moving speeches about his concern for African-Americans. But when it came to dealing with brutal police officers--a matter of special concern to black Americans--his government followed the minimalist approach of the Reagan and Bush administrations. After almost every major shooting incident of the past few years, Bill Clinton called for new gun-control programs. But when it came to enforcement, his government seemed to lose its way.
Assuming President-elect Bush succeeds in getting John Ashcroft as his Attorney General, the question is just how much of the current policy this outspoken conservative will actually want to change.
Evidence is mounting that the coming twelve months hold the best opportunity for a fundamental change in death-penalty politics since the Supreme Court reinstated capital punishment in 1976. You wouldn't know this from the sclerotic policies of the nation's pre-eminent political leaders. George W. Bush will take the oath of office bearing the all-time record for signing off on executions: forty in Texas this past year. President Clinton, meanwhile, leaves office playing politics with death as surely as he did in the case of Rickey Ray Rector in 1992. Faced with the first federal execution in forty years, Clinton had the chance to impose a moratorium and instead punted with a six-month stay, sticking George W. Bush with the troublesome case of Juan Raul Garza and thus in all likelihood leaving Garza to face lethal injection.
None of these men seem to have noticed how profoundly and rapidly the public's attitude toward capital punishment shifted in 2000. Thanks in part to the Illinois death-penalty moratorium imposed last January by Governor George Ryan, a majority of Americans now seem ready to consider whether capital punishment might be, as Robert Sherrill writes in this issue, a bad bargain in every way. In August an NBC News/Wall Street Journal poll found that 63 percent of Americans now favor a suspension of executions until the fairness of capital trials can be studied. This followed earlier Gallup polls showing that overall support for capital punishment has fallen by about 15 points in the past few years and that nearly half would abandon executions altogether if given the option of life imprisonment without parole. Even Texas's record number of executions bucks a national trend: Executions fell nationwide last year by 13 percent.
Forces and trends that will make capital punishment one of the defining issues of the coming year are converging from several directions. Bush's record in Texas will focus new attention on the Garza case. Even some previously silent Congressional Democrats may see cold political currency in seizing the initiative. Representative Jesse Jackson Jr. and Senator Patrick Leahy plan to reintroduce their national death-penalty-moratorium proposals, which will likely surface just as the Garza case approaches its deadline. Their bills will be propelled by a raft of credible recent studies on flawed convictions.
At the grassroots, capital punishment has suddenly caught fire: Thirty-eight municipalities and more than 1,200 organizations have passed resolutions or referendums calling for a national death-penalty moratorium, including cities on such traditional death-penalty terrain as North Carolina and Georgia. And in the media, the Chicago Tribune, whose revelation of systematic flaws in Illinois death-row justice prodded Governor Ryan to his moratorium, has expanded its ongoing inquiry into capital injustice to the national stage, most recently (December 18) detailing the 1998 Florida execution of Leo Jones, who may well have been an innocent man.
The death penalty has long isolated the United States among Western industrial nations, but Bush's elevation seems certain to escalate tensions. Protests about the plight of Mexican nationals on Texas's death row--people who often spend years without proper consular access--have recently driven a wedge between Washington and Mexico City. In Europe, US executions routinely attain a front-page status rarely accorded them on this side of the water. The European Union, which does not hesitate to sanction its own members for human rights violations, is looking for new avenues to pressure the United States. On December 19 United Nations Secretary General Kofi Annan endorsed the call for a moratorium.
The year 2001 could be the one in which America calls a halt to its long love affair with capital punishment. But the people must make it loudly clear to politicians that the death trip is over.
Conservative religious groups, representing an enormous constituency and wielding obvious political clout, may be the power that turns the tide of public opinion decisively against the death penalty. Strong support for capital punishment among Christian conservatives has long led an uneasy coexistence with ideals of life, love and tolerance, but until recently this hypocrisy stood unquestioned in the public arena. In the past couple of years, however, Catholic leaders have firmly established the Church's opposition to the death penalty, while leaders of the fundamentalist Christian community have experienced a dramatic turnaround in their stance on the issue. With the support of these leaders comes the possibility that one day soon the majority of Americans may actively oppose the death penalty.
The 1998 execution of Karla Faye Tucker, who became a born-again Christian while in prison, shattered faith in capital punishment in the right-wing evangelical community. Led by Pat Robertson, Christian conservatives had called for clemency in Tucker's case, citing her religious conversion as a reason for mercy. When their efforts failed and Tucker was executed, Robertson was horrified, denouncing the "animal vengeance" corrupting American society. Soon after Tucker's execution, the leading evangelical publication Christianity Today ran an editorial with the revolutionary headline "Evangelical Instincts Against Her Execution Were Right, But Not Because She Was a Christian." Criticizing capital punishment as discriminatory and vengeful, the editors concluded that "the death penalty has outlived its usefulness." To the delight of abolitionist groups, Robertson went even further this past April when he voiced his support for a general moratorium on the death penalty. This move, coming from a man who as recently as 1988 called capital punishment "a necessary corrective to violent crime," highlights just how radically discussion of the issue has evolved among Christian fundamentalists.
Catholics received a similar wake-up call in January of 1999, when the Pope made his opposition to the death penalty a public focus of his visit to the United States. In a speech in St. Louis, he used the strongest language against the death penalty he has ever used in this country, stressing that "the new evangelization calls for followers of Christ who are unconditionally pro-life...in every situation." He also made a dramatic (and successful) appeal to Missouri Governor Mel Carnahan to spare the life of death-row inmate Darrell Mease. The Pope's zeal, and his willingness to use his position to push his political views, underscore the potential influence of religious organizations on policy. While it is too soon to tell what impact recent events will have on the religious right, the Pope's speech spurred Catholics to assume an increasingly activist role. A few months after the Pope's visit, Massachusetts bishops fiercely denounced legislation that would have restored the death penalty in their state. Bernard Cardinal Law testified against the bill before the Massachusetts legislature and warned at a press conference that for a Catholic to support the death penalty would be "wrong, morally evil and a sin." Similar legislation had failed to pass by only one vote in 1997, but this time it failed by a seven-vote margin. Newspaper accounts noted a change in the public mood from two years earlier, citing the "moral authority" of Law's intensive lobbying as a possible reason for the change.
Growing political activism among Catholics and evangelical Christians builds on a strong tradition of religious anti-death-penalty activism. The national coalition Religious Organizing Against the Death Penalty Project provides an impressive array of educational materials for use in religious communities; it also sponsors conferences and demonstrations all over the country. Its conference in November 1999 was the largest gathering of abolitionist groups in the history of the movement. It focused in part on organizing techniques for religious communities. ROADP is supported by numerous grassroots religious abolitionist groups, among them People of Faith Against the Death Penalty in North Carolina. PFADP has organized more than sixty protests over the past two years and has persuaded three cities and one county in North Carolina to pass moratorium resolutions. Its moratorium campaign is linked to the larger Moratorium 2000 petition movement, led by Sr. Helen Prejean and the faith-based Quixote Center. This past fall, California People of Faith Working Against the Death Penalty held its annual "Weekend of Faith in Action," in which religious congregations across California spend two days organizing their local communities to take action against capital punishment.
Religious groups add energy and accessibility to a movement that not long ago seemed too radical to appeal to the American mainstream. If Catholics and fundamentalists follow their leadership in crusading against the death penalty, public sentiment may bring abolitionism back into fashion. Let's hope religious conservatives win this battle in their war for the American soul.
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