Back in 2012, I received a call from the federal court in the District of Kansas. The government had just unsealed a massive indictment, charging more than 40 people with conspiracy to distribute marijuana. A local police department had conducted a few undercover purchases of marijuana, one pound each, and had somehow managed to convince the the U.S. Attorney to allow it to take the lead on a massive wiretap investigation.
Title III wiretaps are no easy matter. Unlike an ordinary search warrant under the 4th Amendment, which only requires proof of probable cause that incriminating evidence will be found, police have a great number of hurdles to jump before getting wiretap authorization. First, they must show that there is a probability of finding incriminating evidence through a particular phone. They accomplish this usually by setting up undercover operations where an informant contacts a dealer through that phone number, and evidence of the transaction is recorded and reported through the informant. But the police must also show that they have exhausted all other options to discover the evidence, such as undercover officers, surveillance, building searches, grand jury subpoenas, and the like. Even if they can prove this, the warrants only last for a month, and the police must provide the court with regular updates about the wiretap. When the month expires, they must reapply demonstrating an ongoing need for the wiretaps.
Once a wiretap is approved, first by the local U.S. Attorney, then the Department of Justice in Washington D.C., and finally by the court, the police may start listening to calls. In the old days, this would have meant that agents would break into a building and physically attach a device to the phone line. No more. Now cellular phone companies simply receive a court order directing them to route the phone calls directly to a DEA computer in the local office. A team of agents then sits at the machine waiting for calls, listening as they come in, all while directing agents on the street if they want to immediately act on what they learn through the wiretap. The new convenience of cellular technology has made wiretaps a much easier proposition, and wiretap warrants have increased dramatically over the last decade.
The increase in wiretaps has also increased the size of the cases that the government files. With over 11 telephones tapped for more than 6 months, there were hundreds and hundreds of hours of conversations to review in this case. The investigation generated hundreds of thousands of documents, and tens of thousands of hours of work for defense lawyers to prepare the case. Each defendant received a lawyer, and given the time commitment, the government was required to pay those costs as the defendants themselves could not afford the extraordinary costs to litigate such a massive case.
Needless to say, the whole case, which is still ongoing, has cost U.S. taxpayers tens of millions of dollars. From agents, lawyers, court staff, paralegals, facilities, and storage, the cost has been extraordinary. Some individuals ultimately received probation, some a few years in prison, and the most severe penalties were in excess of ten years in a federal penitentiary. A Kansas City detective once told me that law enforcement estimates that nearly 15,000 pounds of marijuana comes into Kansas City every month. Even if the the marijuana distributors in this case were never replaced, the government's efforts were at best inconsequential. Of course, other people have certainly stepped into the role, and marijuana flows as freely throughout the city as ever before. Millions of dollars, lives wasted in prison, and not a single thing to show for it. It is just as easy to get a sack of weed in KC as it was before filing the case.
Now Jeff Sessions would like to revived the Drug War by targeting not only marijuana distribution outside of medical and recreational states, but also by incarcerating medical marijuana suppliers in states like Colorado and Washington. Whatever the current science is on the potential harms (and benefits) of marijuana use, the truth is that the criminal justice system itself creates more harm than the plant itself. We know the government itself does not think that the drug is too particularly harmful, when having the ability to seize marijuana from the streets, agents routinely let hundreds of pounds of marijuana make its way to market just so they can learn who is involved in the green stream. Tax dollars are wasted along with the lives of those non-violent offenders who are thrown in jail. The "problem" isn't solved, and the government just continues to spin its wheels.
Former Nixon officials have acknowledged that they created the war on drugs to target African-Americans and hippies. Now Attorney General Jeff Sessions wants to restart this backwards, expensive, and harmful "war" against the citizens of our country.
Rest assured, we are still in the trenches, ever ready to fight.