By Dave Kopel, research director of the Independence Institute & Glenn Harlan Reynolds, Professor of Law, University of Tennessee. Messrs. Kopel and Reynolds are the authors of "The Evolving Police Power: Some Observations for a New Century," in the Hastings Constitutional Law Quarterly (2000).
National Review Online, April 30, 2001 11:35 a.m. More by Kopel on the drug war.
President Bush won broad support from Americans who are tired of being victimized by abusive lawyers. As governor, Bush signed any tort-reform bill that arrived on his desk. He also signed a bill to prevent local city attorneys from suing gun manufacturers; Bush recognized that the authority to make gun laws belongs to the legislature, not government attorneys. As president, George Bush needs to make sure that his own Department of Justice does not perpetrate legal abuses of its own. A good place to start would be for Bush to fire the U.S. Attorney in New Orleans, Eddie Jordan.
Jordan, a 1994 Clinton holdover, has made himself famous with an abusive decision to treat theaters like crack houses. Using a 1986 statute aimed at crack houses, Jordan is criminally prosecuting the manager of the historic State Palace Theater. The Theater is a famous venue that has previously hosted a huge variety of music and entertainment, including such threats to polite society as Regis and Kathie Lee.
In the 1980s, when crack became popular, drug dealers began taking over inner-city houses (often at gunpoint) and converting them into one-stop facilities where drugs were sold and consumed, safe from police oversight. In response, Congress passed the so-called "crack house law," United States Code Title 21, Section 856. That law makes it a felony for anyone to "manage or control any building, room, or enclosure" and to knowingly or intentionally make it available "for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance."
For years, the only people prosecuted under this statute were people who ran, well, crack houses — or at least things that looked an awful lot like crack houses: places whose chief character was that of a drug factory, warehouse, or den. However, by the turn of the century, federal drug prosecutors were facing another problem: None of their efforts were making a dent in the spread of ecstasy, and it was starting to make them look bad.
Their solution, since they couldn't seem to put drug dealers away, was to target raves. Their argument was that many people who go to raves do so with the intention of consuming drugs while they're there; and since rave promoters know that, the promoters are in violation of the crack-house law. As proof that rave promoters know as much, U.S. Attorney Eddie Jordan pointed to the presence at raves of "drug paraphernalia," such as bottled water, pacifiers, and glow-sticks. This is legally dubious, since "drug paraphernalia" is a term generally applied to items actually used for the consumption of drugs, like bongs or needles. Jordan's approach is like calling tie-dyed shirts "marijuana paraphernalia." This isn't what Congress had in mind.
In fact, had the promoters or theater manager consulted a lawyer and specifically asked if they had any problems under the crack-house law, there seems little doubt that any lawyer would have responded, "of course not." Raves are musical events. Some of the people who come to them consume drugs, but most do not. In this, they are like most other large public events: No doubt many attendees at Willie Nelson concerts, or Phish shows, consume drugs, too. And many people who attend all sorts of performances bring or purchase bottled water.
Jordan claimed that the fact that bottled water sold at the Palace's concession stand was "overpriced" was proof that it was in fact drug paraphernalia. Jordan must not get out much, or else he would realize that "overpriced" bottled water is the only kind of bottled water sold at public events. Jordan's ignorance about the price of bottled water might be humorous, except it's not very funny when such ignorance is the basis of a criminal prosecution intended to put people in a federal penitentiary for up to twenty years, and to destroy an important theater.
Prosecutors and DEA agents freely admit that their real purpose is to close down raves altogether. Jordan has said that simply calling an event a "rave" violates the statute. This raises First Amendment issues: The government isn't allowed to shut down speech just because it doesn't like it. Music is speech, and several courts have already blocked efforts to ban heavy-metal shows based on fears of drug dealing.
Even putting aside the First Amendment, the job of prosecutors is to enforce the existing laws, not to invent new ones. If it's a good idea to make it a crime to host a musical event where some people might use drugs, it's the legislature's job to pass such a law. For the same reason that it is wrong for government attorneys to try to impose gun-control laws through abusive lawsuits, it is also wrong for government attorneys to try to impose new drug-control laws though abusive prosecutions.
Even if we decided to abandon our republican form of government — so that government lawyers could make up new laws — and even if we repealed the First Amendment, U.S. Attorney Jordan's prosecution would still be wrongful. People should only be sent to federal prison for doing something that was illegal when they did it. Until Jordan brought his criminal charges, the theory that a manager of a legitimate theater could be charged under the crack-house law would have been preposterous.
Jordan's biography, which his government office posts on its official website, calls Jordan "an ardent advocate of human rights." How about the human right not to be sent to prison for twenty years because you're the test case for a prosecutor's invention of a new crime?
Whether or not Jordan wins, he will have succeeded in his main goal: exerting a chilling influence on people who perform electronic music, or who promote raves and concerts. Jordan can do this because he has too much money, and too many staffers. After prosecuting the real crimes in New Orleans, Jordan apparently has plenty of resources left over to allow him to pursue novel theories of criminal liability in defiance of statutory intent and of the First Amendment.
In 1995, the Cato Institute reported on the overstaffed and under-worked prosecutors at the Department of Justice. From 1980 to 1995, it found, the Department of Justice's budget had more than quadrupled, and there were two-and-a-half times as many assistant U.S. Attorneys (the foot-soldiers of criminal prosecution) as there had been in 1980.
This was bad, said the report, not just because it wasted money, but also because it was a threat to freedom. Under-worked prosecutors could be counted on to come up with all sorts of ingenious, but dangerous, prosecutions just to avoid looking as if they had too much time on their hands.
President Bush's new budget does slow down the frantic rate of funding increases that the Department of Justice had received during the Reno years. But the Department's budget ought to be cut substantially, restoring funding levels to the (inflation-adjusted) level of President Reagan's first term.
Besides firing lawyers like Eddie Jordan who abuse the system, and besides restoring the DOJ's budget to President Reagan's level, there is another important step that President Bush can take to prevent further abuse of the public by government lawyers: Insist that the Department of Justice respect the principles of federalism on which George Bush campaigned. The events that take place at the State Palace Theater in New Orleans are local activities, and thus ought to be left to the city and state governments. The federal government intervenes too much in local affairs already, and turning a U.S. Attorney's Office into a tool of musical censorship will only make the problem worse.
UPDATE: At the time this article was written, the website for the U.S. Attorney's Office in New Orleans incorrectly said that the office was still headed by Eddie Jordan. Although Jordan had initiated the prosecutions discussed in this article, he resigned in early 2001.