A Federal pestilence

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.

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.

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