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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.
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