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The War on Pot!
Posted by FoM on August 09, 1999 at 12:44:25 PT
Author: Michelle Gerise Godwin 
Source: The Capital Times
In The Eyes Of The Law, Jim Swanson Is A Dangerous Criminal. But Does His Punishment Really Fit His Crime?
On Feb. 19 of this year, Jim Swanson forgot to put his trash at the end of his driveway in rural Spring Green. Spurred by this simple act of negligence and anonymous tips, Sauk County sheriffs deputies invaded Swanson's property and took pictures of his house and shed with an infrared camera. Three days later, James George Swanson, 49, was in the Sauk County Jail, charged on two counts: Possession of THC with Intent to Deliver, and Manufacture of THC.  On May 26, Swanson entered a guilty plea to both counts, as approximately 400 live and 1,100 dead marijuana plants were found in the shed attached to his house. This Wednesday, in a federal court in Madison, Judge John Shabaz sentenced Swanson to 42 months in prison, followed by five years probation. Shabaz counted the dead as well as live plants, but nonetheless imposed a much lower sentence than the law allowed.  "If anything has come out of this, it's the realization that if my Jim were a repeat drunk driver or a sex offender, he'd get off [with less prison time]," says Jim's mother, Mary Swanson. "I'm not saying what he did was right, but he stands to lose everything." Swanson, who ran a business called Rolling Ridge Construction and Development, was prosecuted on the basis of questionably obtained evidence. Broad forfeiture laws were used to seize his possessions, whether or not they had anything to do with his growing operation. And his severe sentence is the product of mandatory minimums established by lawmakers eager to strike a tough posture against drugs. What has happened to Jim Swanson is part and parcel of the War on Drugs--which is, in fact, primarily a war on pot. An Isthmus article last week detailed the huge number of criminal prosecutions by the Dane County DA's office for possession of often tiny amounts of marijuana. This article describes what can happen to people at the other end of the marijuana supply chain, largely as a result of federal laws. "It's a political knee-jerk reaction to a problem," says Marc Eisenberg, Swanson's attorney. "Politicians have no idea how to deal with it, no clue." Swanson was an essential component in a system that provides marijuana to people for recreational and medicinal purposes. No weapons were found in his farm and there's no evidence he was part of any larger ring. Indeed, no one has ever died as a direct result of using the drug Swanson grew, but many thousands of people involved in its distribution have had their lives taken away by the justice system.  Swanson himself, in a July 4 letter to Isthmus, protested the conduct of law enforcement and the harshness of the penalty he faced. "The War on Drugs," he wrote, "should not be an excuse to turn our nation into a police state." CASUALTIES OF WAR Jim Swanson moved to Spring Green from Chicago in 1986. He originally set out to build "environmentally friendly" homes but switched to more traditional models, including his own place on Rolling Ridge Road and the home down the street to which his parents moved in 1990. Mary Swanson says her son got an undergraduate degree from Northwestern University and dropped out of Kent Law School within a week of graduation. "He decided he liked building before than law," says Mary Swanson. "I can remember him, even when he was five years old, digging up the backyard." Swanson last year cofounded Spring Green's first annual literary festival, which is scheduled to take place again this fall, without him. Swanson also worked with the American Players Theater in Spring Green to create a library program to discuss the plays the theater company puts on. Despite these civic involvements, the law considers Swanson and others like him to be dangerous criminals. Nationally, drug prosecutions for marijuana are at an all-time high. According to the 1997 FBI Uniform Crime Reports, "the number of arrests involving marijuana exceeded that for other types of drugs." This even though the U.S. Justice Department's Online Sourcebook for Criminal Justice Statistics places marijuana and hashish in a separate category from such "Dangerous Drugs" as stimulants, depressants and hallucinogens.  In April, U.S. District Judge Barbara Crabb sentenced Gary Roth, a 41-year-old rural Viroqua hog farmer, to 10 years in federal prison, the mandatory minimum, for growing pot plants. In May, police arrested Jeff Loranger and later his wife, Esty Dinur, a local activist who does a program on WORT Radio, on charges of manufacturing marijuana after a raid on their rural Arena home. Friends and supporters have set up a legal defense fund.  Upwards of 60% of inmates in federal prisons have been convicted of drug crimes, most commonly involving marijuana. Nationally, in 1997, the Drug Enforcement Administration destroyed 241 million marijuana plants, made 17,070 arrests, and seized $39.5 million in assets, including currency, vehicles and "other financial instruments." In Wisconsin, 205 indoor grow operations were busted, 2,979 plants eradicated, and almost $280,000 worth of assets taken.  The explosion of personal property seizures has aroused the interest of lawmakers ranging from Rep. Henry Hyde (R-IL) to Rep. Tammy Baldwin (D-WI). The pair surprisingly see eye-to eye on this civil liberties issue and are making a push to restore due process to this area of law enforcement. Hyde is the chief sponsor of HR 1658, the Civil Asset Forfeiture Reform Act, which passed the House on June 24 by a margin of 375-48.  Hyde focuses on cases in which innocent victims have had to wait years before the government returns their property, if it is ever returned. "You hear these terrible stories, and you just can't believe these things can happen in this country," he told The Washington Post. "People take their due-process rights for granted, but they have no idea that these laws exist." Rep. Baldwin puts HR 1658 in this context: "I believe it is unwise in the long run to draft laws that lead to cookie-cutter justice. We have long had the belief that we ought to have a system of elected judges to exercise sound judgment and discretion within our civil and criminal justice system." But under current laws, property can be seized without a judge being involved.  Baldwin says HR 1658 "clearly defines what it means for a property owner to be innocent and increases the burden of proof required that any property is subject to forfeiture." In his letter to Isthmus, Swanson comments on an enclosed copy of the Preliminary Order of Forfeiture that lists items removed from his property deemed to have been used in his grow operation.  "These items were removed before all the marijuana was removed and none of them have been returned," Swanson writes. "A great deal of the confiscated property appears to have been chosen by the deputies for their own use. The Sauk County Sheriff's Office can dispose or sell the items without any public accountability, thereby giving them an incentive to conduct searches with or without sufficient cause. A further problem develops when defendants are coerced into agreeing to forfeiture or face the possibility of a longer prison term." Swanson highlighted approximately 260 items on the list that he said had nothing to do with his grow operation, including: 2" red hole saw, Ryobi 10" surface planer, Milwaukee electric side hole drill, one length of sewer tape, crow bar, copper pipe fittings, large caulking gun, lamp with green shade and bulb, 6' aluminum level, Tru-Grip 36" bench clamp, one pair of tin shears, and a Lincoln electric welder. Even Judge Shabaz, in imposing sentencing, groused that "Not all this junk can be contraband." Rep. Baldwin agrees that the forfeiture law's reach extends too far. "One of my favorite examples regarding seized assets is with U.S. customs," she says. "There are roadblocks at borders and airports and if you come through with a large amount of cash, it is often believed that the money is linked with illegal drugs. The drug-sniffing dogs are used along with follow-up tests. Drug residue is found on the money and it is seized. But I read a study that shows that since currency goes from hand to hand to hand, 80% to 90% of it will test positive for some kind of drug. Think about it." SOMETHING SUSPICIOUS On Jan. 12, 1999, two anonymous tipsters approached off-duty detective Terry Shifflet. According to a Sauk County Sheriff's Department Drug Tip Information Report, the first informant commented that Swanson "never works and is very protective of his property" and that "something suspicious is going on over there." The informant went on to say that a shed was located on the land and that Swanson may have some large water tanks next to it. A second anonymous informant chimed in, "I can't believe you guys don't know about Jim! Jim's been growing pot in that shed for years and selling it in Chicago." "There were no first-hand observations, no corroboration, no details--squat," says Eisenberg. The Defendant's Brief to request a Franks Hearing (a preliminary showing that false statements were knowingly used in the warrant affidavit) states, "Most of the time when anonymous informants give information to police officers concerning a person's dealing in controlled substances, the police attempt to corroborate the information by either conducting surveillance of the property or by making a controlled purchase from the alleged seller." In Swanson's case, neither of these things were done. Instead, the Sauk County Police Department set out to obtain a search warrant for Swanson's house and shed. They had planned on digging through his garbage but he failed to put it out, which magnified their suspicions. So did the fact that Swanson's property lacked easy public access, was overgrown with weeds and contained a number of automobiles, including his 1998 Audi station wagon. Probably the most troubling piece of evidence used to obtain the warrant was the thermal imagery of Swanson's property taken by Det. Wayne Smith.  For one thing, charges a brief filed by Eisenberg, Det. Smith had to "invade the curtilage of Swanson's residence, going behind the house and onto a wooded lot that is very secluded." Secondly, the detective's reading indicated an abnormal amount of heat emanating from the third floor of the shed "consistent with persons involved in the illegal manufacturing of controlled substances." The actual grow operation was located on the fifth floor of the workshop.  Infrared Technologies Corporation president Carlos Ghigliotty, retained by Eisenberg to comment on the search warrant, stated that the type of camera used "can be easily manipulated" and "may 'bloom' or exaggerate images and make them look warmer that they are." According to Eisenberg, the evidence used by police to obtain a search warrant was faulty in other respects. "An affidavit used to obtain a search warrant should be clear, accurate, and not mislead the magistrate," he says. "This one lacked probable cause. The detectives tried to prove that my client didn't work, which isn't true. He had a legitimate business as a remodeler and contractor. He had a legitimate income--it's all on his tax records.  "They said that my client had significant assets--he has over $500,000 in mortgages on his properties. They looked at his electrical bills over the past four years, yet they compared the property of Jim's size, 9,000 square feet, to a neighbor's place of 2,000 square feet. They were even suspicious of my client's order with a catalog called Daedalus Books, as they were told by a receptionist there that Daedalus only sold ‘books on gardening and children's books.' Jim had ordered 35 classical music CDs." In a May 22 ruling, Magistrate Judge Stephen Crocker agreed that the investigation by Sauk County sheriffs deputies was flawed. Among other things, he noted, they failed to report Swanson's mortgages, explore Daedalus Books, or videotape the thermal imaging surveillance process.  "There is not much support for the inference that [Swanson's] entire business is a front for a drug operation," Crocker writes. "It isn't really misleading not to provide the information that supports a conclusory inference, it's just short-sighted.... This is a probable cause concern." But, in the end, after stating "Whether there is probable cause to support the warrant is a close call," and "the police did not shag out the ground balls and did not even throw all of their best pitches," Crocker nonetheless recommended that the court deny Swanson's motion to suppress evidence. 'A GOOD PERSON' Although Eisenberg would not let Swanson be interviewed for this article, others who know him paint a portrait of a decent man whose horticultural interests were in keeping with his generous spirit and mildly rebellious nature.  "Jim is definitely a person who tilts at windmills," says "Mike" (not his real name), a friend. "He is an aggressive developer that might have pissed some people off along the way. He even donated gay-themed books to the Spring Green Library. That caused quite a stir. But Jim has a big heart. He taught history to community kids who were homeschooled. He loved doing that." Swanson was big-hearted in other ways, too. He gave away much of the marijuana that he grew, especially to people who use it medicinally. Mike, who has AIDS, is one of the people Swanson provided with pot, free of charge.  "It is such a relief to be able to break free from the pain and be able to eat," says Mike. "I've tried Marinol [a pill that contains the active ingredient in marijuana] and it is not the same. It doesn't ease my symptoms, and I feel I cannot control the amount ingested. I feel more high from a dose of that than I do from half a joint. It was a blessing to receive the generosity from Jim. He just wanted me to feel better." In fact, Mike thinks Swanson's violations of the law pale in comparison to the transgressions of law-enforcement officers who brought him down. "This is an issue of the Fourth Amendment," he says. "It was a shabby search warrant from the beginning. I don't like the fact that the police can get away with [it]. I dream of this worse-case scenario that my power bill will be checked, or a neighbor might think that I travel too much or live too comfortably, and someone will burst into my bedroom and spy an ounce on the table. Also, I can't get it out of my head that every time I get my marijuana from another source, I'm not only putting myself at risk, I'm putting that other person at risk." Swanson has never before been convicted of a crime, although he past arrests on drug possession charges that did not lead to convictions. The most recent arrest was 12 years ago, in Illinois. "I don't doubt that Jim Swanson is a good person," says his prosecutor, Grant Johnson, first assistant to the U.S. Attorney for the Western District of Wisconsin. "But have you seen the size of his operation? It was huge! And it certainly the one that was the most elaborately concealed." And there's nothing unusual about locking up nice guys for drug operations. "OK, listen," says Johnson. "I've been working in this office since 1975, and literally--literally--I've met a handful of genuinely bad people who are in Swanson's situation. Most are good people, just good people who went astray." But Swanson's family and friends think the system needs to change. When Sen. Russ Feingold came to Spring Green for one of his listening sessions on June 4, four people in attendance, including Mary Swanson, quietly filled out question cards for the senator. Each card asked about HR 1681, a bill introduced in May by Rep. Maxine Waters (D-CA) that would eliminate mandatory minimum sentences for drug law violations.  "This wasn't a sign-waving protest," says Michael Jacob, Feingold's press secretary. "These people were polite, yet obviously concerned. No one really asked the senator to do anything, as he has a history of not supporting the legalization of marijuana." According to Mary Swanson, Feingold was "receptive and sympathetic" to her son's predicament. "We've got to make sure this bill passes," she says, "so other families don't suffer." Pubdate: 9 Aug, 1999 Source: Capital Times, The (WI) Copyright: 1999 The Capital Timeshttp://www.mapinc.org/drugnews/v99.n821.a03.html/all Drug Policy Forum Of Wisconsinhttp://www.drugsense.org/dpfwi/
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Comment #1 posted by FoM on August 10, 1999 at 21:37:49 PT:
Correction to The War on Pot 
Here's the correct link:
 Correction to The War on Pot 
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