Friday, November 2, 2007

Federal Prosecutors: A Human Pestilence

There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. --

Dr. Ferris, a bureaucratic parasite, explains the governing principle of “soft totalitarianism” to industrialist Hank Rearden in Atlas Shrugged

Oh, what fun it is to tear up the Constitution and ruin lives needlessly!
Federal Prosecutor Randy Massey clearly enjoys his work. After all, there's not as much money in his former career as a Captain Kangaroo Impersonator.

The April 28, 2006 press release from Randy G. Massey, Acting US Attorney for the Southern District of Illinois, emitted the familiar stench of bureaucratic self-congratulation: It announced the indictment by a federal grand jury of 27-year-old Katie R. Heath for “conspiracy to manufacture, distribute, and possess with intent to distribute over 500 grams of methamphetamine in Saline County and elsewhere in the United States.”

Miss Heath, the announcement explained, was taken into custody by bold and heroic law enforcement officers during a “pre-dawn sweep.” Some measure of the seriousness of the crimes allegedly committed by Heath, we are to understand, can be found in the maximum prescribed penalties: Up to life imprisonment and a $4 million fine.

Katie Heath's case does present one substantial problem: At the time of her arrest she was neither using nor distributing drugs. She had been paroled from prison just three months earlier after serving one year of a four-year sentence for the same acts listed in the federal indictment.

The plain and obvious meaning of the Fifth Amendment's prohibition against double jeopardy dictates that what Massey seeks to do here is impermissible. Then again, the division of labor described by James Madison in Federalist Paper number 45 – with the scope of federal criminal prosecutions limited to “few and defined” matters, none of which deals with narcotics – almost certainly means that Massey shouldn't have his job in the first place.

In the 1922 case US v. Lanza, the Supreme Court devised a way to nullify the Fifth Amendment's guarantee against double jeopardy: It created a perverse variant of the concept of federalism by describing the states and the federal government as different “sovereignties ... deriving power from different sources, capable of dealing with the same subject matter within the same territory.”

Appropriately, the “subject” of the enforcement action leading to this decision was the demented effort to prohibit production and consumption of alcohol, the direct antecedent to our contemporary “war on drugs.”

It might be remembered that this “dual sovereignties” concept was employed in the early 1990s to justify a federal “civil rights” conviction of officers involved in the Rodney King arrest, after they had been acquitted by a local jury.

Once the division of labor described by Madison is understood, it becomes clear that federal laws against narcotics use and distribution are constitutionally unsupportable; this point is buttressed by the fact that the pseudo-puritanical totalitarians behind prohibition understood that it was necessary to amend the Constitution in order to give the federal government power to criminalize the traffic in intoxicants.

Notwithstanding the tortured sophistries offered by people who subsist on unnecessary human misery – that is, servants and employees of Leviathan – it is clear that Katie Heath was facing double jeopardy.

Of that troubled young mother, Federal Judge J. Phil Gilbert has said: “She's no saint. She got caught up in drug addiction and made bad choices that resulted in her spending a year in state prison.” The youngest of her three small children was born in prison. Once she was paroled (the term “parole,” by the way, is a synonym for “acquittal” and close kindred of the verb “to forgive”) Katie went to school, held down a job, and tested clean for drug use. Judge Gilbert points out that after her indictment Katie made a good faith effort to cooperate with federal prosecutors.

Nevertheless, Massey decided to “enhance” the charges against Heath so that she would face a mandatory minimum sentence of 20 years in prison. That “enhancement” must be viewed by honest people as the creation, after-the-fact, of a new offense from the raw materials provided by the same acts for which Heath had already been punished.

Why did Massey and his comrades in the US Attorney's Office do this?

“Because they can,” answers Judge Gilbert.

Soviet Prosecutor Andrei Vyshinsky (center), patron "saint" of corrupt prosecutors everywhere and unacknowledged role model for most US Attorneys, reads an indictment during a 1937 Soviet show trial.

"Because they can."

That phrase, and variants of it, is the final answer of the bully, the thug, the tyrant, the torturer; it would serve quite nicely as the official motto of the emerging Homeland Security State.

Judge Gilbert
does not have a reputation for leniency. Yet this spectacularly corrupt and abusive decision, typical of what he calls “a culture that has been going on in this district for eight or nine years,” provoked him to resist. When Heath attempted to plead guilty to the manufactured federal conspiracy charge in the forlorn hope of receiving a relatively light sentence, Gilbert simply refused to accept the plea.

Gilbert's apparent hope – as forlorn as Heath's – was that a there was a human being inside the officious, power-intoxicated creature called Randy G. Massey, and that said human being would be susceptible to a sense of decent shame over this act of gratuitous official sadism.

But federal prosecutors appear to be drawn from a pool of beings immune to such decent and elevated sentiments. Additionally, federal sentencing guidelines given prosecutors broad and unaccountable discretion in these matters.

So Massey and his comrades applied successfully to the 7th U.S. Court of Appeals for a writ of mandamus, which would compel Judge Gilbert to impose the desired sentence. Gilbert responded by doing something perilously close to the honorable thing: He recused himself from the case, rather than accepting Heath's guilty plea and thereby sealing her fate.

The unambiguously honorable thing would be for Gilbert to resign and join the movement to end the “war on drugs.” Perhaps in time the judge will do so.

“Prosecutors are driven by statistics and a desire to prevent judges from exercising any control over the sentencing process without regard for the individual,” observes Gilbert. “Although not rising to the level of mean-spiritedness, the words `arbitrary' and `capricious' come to mind.”

Well ... no. This assessment is too mild by a couple orders of magnitude.

“Mean-spiritedness” is a term used to describe criticism, not the theft of two decades of a woman's life on a patently dishonest pretext. And there's nothing commendable about Gilbert's restraint in criticizing Massey's little clique. Katie Heath wasn't able to utter a syllable to criticism, lest she be accused of “non-cooperation” with the Feds; Gilbert – as far as I know – is under no similar restraints. He ought to rummage around in his rhetorical nap-sack in search of more potent imprecations and hurl a few of them in Massey's direction.

(J.D. Tuccille, Radley Balko, and Jacob Sullum have all written perceptive accounts of this outrage.)

A Personal Note

Thanks, once again, for the kind wishes, prayers, and other generous help offered on behalf of Korrin and my family. And I wish to apologize for my scanty offerings this week. With Korrin in the hospital and most of us at home -- including myself -- succumbing to the flu, my productivity has suffered a bit. Please stay tuned for posts over the weekend. Thanks!

Gratuitous Video Feature

Harry Shearer's "Waterboardin,' U.S.A."

Dum spiro, pugno!


straightarrow said...

I said at the time of the retrial of the wrongfully acquitted criminal cops in the Rodney King fiesco, that the fifth amendendment right against double jeopardy had been repealed by dishonest and power mongering tyrants on the ascendance.

Everybody I know, accused me of being a racist supporting the torture of a black man by officers of the law.

I submit that the jury who acquitted the cops the first time were the racists, because nobody in his right mind with even a barely functioning moral compass, could view the tape of that beating and acquit the criminal assailants.

But, of course, my opinion wasn't politically correct due to reasons of race. Therefore it could be ignored while the rights of the entire populace of the country be sacrificed in the interest of proving we weren't racists and in appeasing the race baiters who make a living by exploiting such issues.

The only issue was and is, is a member of the HUMAN RACE, being denied their constitutional rights. King was, and then in retribution so were the rest of us. Little attention was paid to principle over politics. Now we reap what we sowed by our support for making exceptions to the rules. Unfortunately, exceptions to the rules eventually become customary practice and the de facto rules constitute tyranny.

Now we see, commonly, the effect such nonconsequential agressions against the constitution have for the rest of society.

We cannot, as a society, say we do not deserve it, for we do. We abandoned principle in favor of temporary and fleeting righteous indignation (deserved indignation). We have cooperated in our own enslavement.

On another note;

My prayers are with your wife and your family. If God cannot give you the outcome you want may He give you what you need.

Al Newberry said...

I gotta wonder about the person who posed the question "Would you agree that a dunk in water is a no-brainer if it saves lives?" What planet is this person living on? A "dunk in water?" Either this guy has no idea what waterboarding is, or he is just a shameless liar.

Jerri Lynn Ward said...


You know the Bible a heck of a lot better than I do. Given that, would you not compare the case law approach to interpretation of the Constitution to what the Pharisees were doing to scripture during the time of Jesus?

William N. Grigg said...

Jerri Lynn -- I think you're exactly right. "Thus have ye made the commandment of God of none effect by your tradition." (Matthew 15:6).

The Pharisees were big believers in "making a hedge around the law"; those hedges, in turn, were circumscribed by other enactments, and the process metasasized to such an extent that the entire point of the law was lost. Of course, exactly the same thing can be seen today where constitutional interpretation is concerned, the Lanza case being a very suitable example.

Straightarrow, because I've been so preoccupied I neglected to tell you how much I enjoyed and appreciated your comments on an earlier thread. And thank you so much for the prayers and kind words on behalf of my family. As our trials deepen, it's a source of considerable comfort to know that people like you are praying on our behalf.

Zachary said...

They're all going to get theirs one day. Scary thought.

Bob said...

I am beginning to believe that this entity known as the United States may have outlived its' usefulness. Perhaps it's time this country be broken up to dozens, or even hundreds, of independent nations. The country, as constituted now, has become ungovernable. The Federal government was originally set up as an agent of the states, and this country was supposed to be a voluntary association of sovereign and independent states. With law enforcement resembling more and more like the Gestapo and/or KGB, perhaps it's time to dissolve this country and start over.

Anonymous said...

What a delicious idea! I think Bob is onto something.

Anonymous said...

Bob, you make some good points. It's in the nature of things for government to grow and for liberty to yield. The chains of a constitution worked to restrain that trend for a while but the links were eventually broken one by one allowing the beast to rampage into our lives almost without restraint.

Even if we wanted to keep the "system" going it would eventually be impossible to do because unleashed Leviathan has acquired an insatiable taste for the value of the money and supply of credit that makes its existence (and ours) possible. In short, the gluttonous thing is rapidly outstripping its available food supply.

Daniel M. Ryan said...

The doctrine of "dual sovereignty" certainly makes it conceivable...

bill anderson said...


Once again you have written something that is too important for people to ignore. As one who has written a large number of articles and papers about the growth of federal criminal law, I can vouch 100 percent for your conclusions.

In his book The Road to Serfdom, F.A. Hayek had a chapter in which he explained "why the worst get on top." The offices of prosecutors -- and especially federal offices -- are full of bullies and people who enjoy torturing others. They are the worst people, as opposed to their being characterized as the "best and the brightest."

In the name of shameless self-promotion, I have included a link to a piece that Candice E. Jackson and I wrote for Reason Magazine nearly four years ago about the growth of this cancerous "federal crime" industry.

Also, I would highly recommend the series by Bill Moushey in the Pittsburgh Post-Gazette nine years ago, entitled, "Win At All Costs."

It details the dishonest culture that is at the heart of federal prosecutions and federal "law enforcement."

Thank you for your comments and your insight. They are felt deeply by this person.

And it always is good to see my friend Jerri Lynn posting. Indeed, her analogy here is on the mark. One can see that in modern federal law, in that Congress passes the law, but the way it is applied is created by the bureaucrats who write the regulations.

Furthermore, even though regulations themselves do not carry criminal penalties of broken, nonetheless, federal prosecutors find a way to charge violators with crimes, anyway.

At the same time, we also see federal prosecutors ignoring crimes that are committed for political reasons. The recent Duke Lacrosse case, in which prosecutors and police lied, broke the law, and knowingly indicted innocent people, simply is being ignored by the authorities. I mean, why deal with police and prosecutorial misconduct when there is a single mother to throw into prison?

liberranter said...


An excellent idea the time of which will eventually come to pass (methinks that the Free State project, whether its advocates realize it or not, is a step in that direction). At the present time, however, I don't think that such a movement can occur without hideous bloodshed. Leviathan, in its desperation (a sign of the onset of its death throes) will use every means of force at its disposal to keep the states in line, resulting in a bloodbath that will make the War to Prevent Southern Independence look like a schoolyard scuffle.

Anonymous said...

Say... wasn't Rudy Gulianni a Federal Prosecutor?

Nevermind... pretend I didn't even ask that qvestion!

dixiedog said...

I am beginning to believe that this entity known as the United States may have outlived its' usefulness. Perhaps it's time this country be broken up to dozens, or even hundreds, of independent nations.

I understand perfectly bob. I've said similar here and elsewhere myself ;). You're certainly not alone with that thought.

Anonymous said...

Kudos DD.
I remember reading your points on this matter. Good ideas all. I'm definitely on board with DD's and Bob's dismantling-the-dystopian- Leviathan reclamation project.

Win said...

If I read the 14th Amendment right, and Lysander Spooner, our problem seems to be in claiming to be US citizens. The USA, being a "political fiction" doesn't exist in nature, SO, how can one be born "in" it?
No one [Will] answers the question of "HOW one becomes a US citizen" if he never knowingly, willingly, being fully informed of the consequences "volunteered into subjection" to state/federal govt.
"At the revolution," Chisholm v Georgia the people were politically equal as "sovereigns without subjects." Therefore, when some men wrote the Constitution, we should ask "By who/what authority could anyone of us be subjected to it or its created govt apart from our volunteering?
Anyhow, since none of us remembers or "knows" where we were born, why say what we only "think" instead of making the govt prove political jurisdiction. Actually, it can't!