Prohibition –Theory and practice: Part 3: Law Enforcement
A recent sociological study of street prostitutes in Chicago showed that 3% of their tricks were “freebies” performed for Chicago police officers. Both parties to these transactions considered them to be a “business tax”, paid by the women as the price for conducting their business unmolested. This case is a routine, if somewhat benign, effect of a prohibition on law enforcement.
Prohibition always has a corrosive, corrupting effect on law enforcement. These effects come in four forms. The large, unaccounted-for sums of money created by prohibition markets co-opt law enforcement personnel either as agents of the providers or as independent suppliers themselves. The lack of complainants in prohibited transactions leads enforcement to depend on untrustworthy and frequently untruthful methods like undercover operations and informants. The futility of attempting to quash prohibition leads to disinterest and slacking by those who see their efforts as useless. Contraband markets are always accompanied by an increase in violence, with police agents find themselves on both the delivering and receiving ends.
Traffickers run the double risks of arrest and violence. Fortunately for them, prohibition adds a premium of at least 90% to the price of the illegal commodity, providing them with ample funds to protect themselves.
As I have discussed previously, prohibition does not remove the prohibited good from the market. It does, however, increase the costs of providing that commodity by adding, among other costs, the risks of violence and imprisonment to those incurred by the supplier. A rational supplier will look for ways to offset those costs and will use the increased funds available from prohibitory prices to avoid them.
One simple way to avoid those costs is to purchase police officers. These purchased police may act directly by providing intelligence or protective services to the traffickers. They may also act indirectly to subvert the judicial process by destroying or suppressing incriminating evidence or providing false exculpatory evidence. During the brief thirteen-year life of the “Great Experiment”, over thirty per cent of the federal prohibition agents were convicted, fired, or forced to resign because they were corrupted. In 1930, the director of the Prohibition Bureau resigned when the public learned that both his son-in-law and his nephew were employed by Nicky Arnstein, one of New York’s biggest bootleggers and the man who first arranged heroin smuggling routes from Europe. In the mid-1930s, the Secretary of the Treasury was forced to step in and fire one-third of the Narcotics Bureau who were in the pay of drug smugglers. When the same thing happened in the 1960s, the Bureau was moved to the Department of Justice and became the Bureau of Narcotics and Dangerous Drugs. One week later, the head of the Miami office was caught taking a bribe and forced to resign.
This corruption is not just ancient history. The Border Patrol, responsible for interdicting both contraband drugs and illegal aliens, has a continuous history of agents convicted of corrupt acts. When Homeland Security began its new program of placing Sky Marshals on domestic flights, two of its first marshals dispatched from Houston were arrested for attempting to smuggle cocaine on their flights. Both had just transferred from their earlier jobs as DEA agents.
The chain of corruption has extended upward from field officers to elected sheriffs and prosecutors. Even one federal district judge was convicted and removed from office for accepting bribes from traffickers. As a series of investigative reports on the New York police, beginning with the Wickersham Report in the 1930s and continuing until the Serpico affair in the present, show, no police agency, large or small, has been exempt.
The combination of ready money and the relative impunity of drug dealers has tempted many police officers into going into business for themselves. Every police department has had problems of drugs, money, and guns “disappearing” from secure evidence lockers or less drugs and money turned in after arrests than the arrestees claimed to possess. Police have used this diverted contraband themselves, as planted evidence in other cases, or as merchandise to sell themselves.
When Texas banned smoking in prisons, cigarettes became the new contraband. The twenty cigarettes in a pack, then costing about two dollars, could be cut into thirds, each selling for five dollars. That opportunity to turn a two-dollar investment into three hundred dollars of tax-free income was more than many $20,000 a year prison guards could resist. The firings and convictions have continued at a steady pace. Studies in prisons have shown levels of drug use inside to be the same as those outside – circumstances that would be impossible without the cooperation of corrupt staff members.
Neither the seller nor buyer will file a complaint or willingly testify in a typical drug transaction. The police therefore are impelled to use undercover agents or informants to make cases. These methods carry with them three major vices.
Informants are inherently untrustworthy. They are providing evidence in return for either money or leniency in their own cases. A scandal in the Boston FBI office involved agents turning a blind eye to murders committed by their informants in return for information about organized crime. Maybe all informants do not lie every time they open their mouths, but lies are by far their most common product.
The same pressures to produce evidence exist for undercover police. Three major drug task force scandals in Texas – Tulia, Hearne, and the Dallas Drywall cases – all involved undercover police making up evidence to make cases. In Tulia, one lying cop convicted 37 innocent people before his scheme unraveled. All were ultimately pardoned on the basis of actual innocence. Forty years ago when I started practicing law, the cynical courthouse joke was to speculate about how many times the same matchbox full of marijuana was introduced into evidence.
Violence is the third major risk of undercover operations. Often the officers are not good enough actors to sell their performance to wary dealers, and the deal goes sour. Alerted dealers, facing decades in prison, frequently try to shoot their way out of trouble. The result in many cases is dead or wounded police officers or innocent by-standers.
A civil society cannot exist with a corrupt law enforcement system – or even one that is merely perceived to be corrupt. Ineffective prohibition schemes like bans against some drugs or prostitution lead inevitably to the visible corruption of law enforcement. While the vast majority of police officers, prosecutors, and judges remain honest, the handful who succumb to these corruptive influences is enough to destroy both public confidence in law enforcement and public confidence. The only way to preserve the integrity of law enforcement is to remove the prohibitory laws that are eroding it.