Zero-Tolerance Crackdown on Drugs Stirs Up Backlash Fear

We’re looking for the quick kill, to make the point with the defendant, to get them into a treatment program. We don’t ask that all defendants go to jail.

Peter K. Nunez, U.S. Attorney

It cost Eric Passannante of Boring, Ore., nearly $900 to retrieve his 18-year-old orange Volkswagen bug after it was seized by the federal government last December.

The 20-year-old student and two friends were coming home from a Christmas break in Tijuana when U.S. Customs Service inspectors found about one-sixtieth of an ounce of marijuana in a jacket in the back seat of his car.

“I was so mad I was gonna spit,” said Eric’s mother, Cindy Passannante, who helped him come up with the money to pay a $150 fine and hundreds more for hotel bills and air fare between Oregon and San Diego, where he had to appear in federal court on a felony charge of importation of drugs.

“It was a leftover stub in a kid’s jacket,” she said, adding that it wasn’t even Eric’s jacket and that her son had never before been arrested for anything. “This is an honor student from Oregon. He just about died when it happened.”

Roof Slashed, Seats Pulled Out

Eric has his car back now, with the inside of the roof slashed and the seats pulled out by Customs inspectors, his mother said. He also has a probation officer in Oregon. If he stays out of trouble for the next year, the charges will be dropped. Even so, his mother said, the government’s handling of the case was “a bit excessive for that amount of pot.”

That incident occurred under the old “zero tolerance” program, an anti-drug crackdown operating in relative obscurity for nearly 18 months at the California-Mexico border. If the younger Passannante were stopped today under the same circumstances, chances are good he would never see his orange Volkswagen again.

Federal agencies, especially Customs and the U.S. Coast Guard, have begun to crack down harder, seizing cars and boats permanently unless their owners can prove they had taken precautions against drugs and had no knowledge that drugs were present.

Such “innocent owners” might typically be car- or boat-rental agencies or a person whose car has been stolen, according to Customs officials. But people caught in their own cars or boats with even a trace of drugs, an empty marijuana pipe, a roach clip, a cocaine spoon or any other drug paraphernalia will have little chance of getting their vehicles back, officials say.

Drawn Attention of Congress

The new chapter of zero tolerance has provoked the ire of boat and car owners and has begun to draw the attention of Congress to the formerly low-key program begun by U.S. Attorney Peter K. Nunez in December, 1986, in what he called “an attempt to attack the demand side of the drug problem.”

Nunez now is concerned about the possibility of a public and congressional backlash against what he considers a highly successful program.

On Friday, Coast Guard and Customs officials said they plan to modify the policy to avoid penalizing innocent boat owners whose guests or crewmen are found with small quantities of illegal drugs. William von Raab, Customs commissioner, said the agency will exercise “better judgment” and “focus more on culpability.”

Kenneth Ingleby, special agent in charge of the Customs office in San Diego, said people with illegal drugs still run a serious risk of losing their cars or boats.

‘Process Has Changed’

“If a person’s got stuff in a car they own, then they’re responsible,” Ingleby said. “Paraphernalia breeds drug use, breeds sales, breeds importation. “Fewer people will, in fact, get their cars back,” he said. “Now the process has changed in the federal court, and it’s going to take a longer period of time.”

Nunez said last week that he is concerned that the crackdown may disrupt the federal courts in San Diego and overburden his staff. The system depended on quick guilty pleas in the criminal cases and the return of the cars by Customs.

But in the past 10 days, the system has begun to grind to a halt as Customs refuses to return the cars and people refuse to plead guilty. The U.S. attorney’s office has the responsibility not only for prosecuting the criminal cases but also for representing Customs when people petition the court to fight the seizures.

“I don’t have the resources to handle a huge influx of new cases,” Nunez said, adding that one of his options is to say to Customs

and the Coast Guard, “Fine. You want to do all of this, you give us the additional resources.”

Customs’ new policy of seizing the automobiles of people found with “drug paraphernalia,” even when no drugs are present, also threatens to increase prosecutors’ loads.

Cheryl Caho, a 20-year-old receptionist and model, lost her 1985 Chrysler Laser three weeks ago when Customs inspectors at San Ysidro discovered a marijuana pipe in the glove compartment.

“I told the inspector I didn’t know it was there, and he said, ‘We now own your car,’ ” Caho said. “I just bought my car and it’s a month old. I worked two jobs to buy that car.”

Not Charged Criminally

She was not charged criminally, but nevertheless lost her car, which she says is worth about $4,700. She said she has made only two payments on the loan.

Caho said that her teen-age brother left the pipe in the glove compartment when he helped her move last month and that her family has sent an affidavit to Customs swearing to it.

“I’ve never even had a speeding ticket before,” she said. “I don’t know how they expect me to get to and from work.”

Caho said she intends to continue making payments on the car while she fights the forfeiture in court. Meanwhile, daily storage charges of $3 to $4 charges have begun to mount. More than 1,000 people were arrested under the old zero-tolerance program. Most were charged with importation of drugs, a felony, but were permitted to plead guilty to possession of illegal drugs, a misdemeanor.

Got Deferred Prosecution

Many were given deferred prosecution, which meant that the charges would be dropped if they stayed out of trouble for a year. Generally, Customs returned the defendants’ cars after they paid fines ranging from $150 to about $1,300.

Nunez said he does not think the recent seizures are “excessive” and that Customs “has every right to adopt whatever policy they want on forfeitures.”

“My concern is that the mechanical process, the program we tried to set up of having cases proceed quickly through the system could be upset by the new forfeiture policy.”

“We set the program up to make it as efficient as possible and to run without any new resources or by setting up any new bureaucracies,” Nunez said.

In 1987, the U.S. attorney’s office, in cooperation with Customs, handled 880 zero-tolerance cases. A small number of the defendants failed to appear in court, but the overwhelming majority did appear, and all but two pleaded guilty outright or agreed to deferred prosecution, Nunez said. The two people who went to trial were convicted, he said.

The courts in San Diego first felt the impact of the new crackdown about 10 days ago, Nunez said, “when approximately half of the defendants decided to plead not guilty because they did not want to lose their cars. The admission of guilt in the criminal case would have a devastating impact on their ability to get their cars back,” he said.

“We don’t have the resources to handle these cases if everyone goes to trial,” he added. “We’re looking for the quick kill, to make the point with the defendant, to get them into a treatment program. We don’t ask that all defendants go to jail,” Nunez said. “But we won’t be able to do that if we have to treat every case as a felony.”

Too Early to Tell

Nunez said it is too early to predict the long-range effect on the federal courts, and that defendants may ultimately decide that a guilty plea to a misdemeanor is a wiser course than a trial and conviction on a felony charge.

“If Customs is going to play hard ball and forfeit the vehicles, the defendants are faced with two options: I lose my car and get a misdemeanor or I lose my car and I get a felony,” Nunez said.

“Even though the stakes have changed somewhat, if I were a defense attorney, I think I still would have to advise my client to plead guilty.”

Nunez said he is concerned that the Coast Guard, which recently began seizing boats under the program, never consulted his office to find out what makes a good case. He said he plans to meet with Coast Guard officials.

Written Guidelines

“The cases we get from (Customs) are carefully selected to make sure we have a good case,” Nunez said, adding that Customs inspectors were given written guidelines when the program began in 1986.

“I think the court system has to have credibility with the public, the press and Congress,” Nunez said. “Up until now, zero tolerance has had very wide acceptance. I don’t know how the general public views the latest developments, whether they think people smoking dope deserve to lose their boats. . . . We’re not panicking.”

Kate Thickston, a lawyer in the Federal Defenders office, represented the first group of people charged under the new crackdown and said she decided to take a new tack. Customs in effect “convicts these people of possession before they’ve even gotten into court,” she said. “Rather than just roll over and let them do that, last week as the first group of people came in, we pleaded them not guilty.”

Thickston said she is unsure how the cases will be resolved. “Right now, things are somewhat in a state of flux because we really feel that it’s quite a bit out of hand.”

John Cleary, a San Diego defense attorney, said he viewed the old policy as fair because cases were handled “in a reasonable, one-shot basis.” He said people could plead guilty to a misdemeanor or get deferred prosecution, then go to the Customs office and pay a fine for the return of their cars--all in one day.

“Without notice to anybody, Customs refused to exercise its discretion,” Cleary said. “They said, ‘We will give no relief whatsoever.’ ”

Cleary said he was contacted recently by a distinguished Los Angeles lawyer who was returning from Mexico with his son when inspectors found a minuscule amount of marijuana in his son’s backpack. The attorney’s car was seized, Cleary said, and the lawyer has been unable to get it back.

Because of the difficulty in petitioning for the return of a car under the new procedures, he told the attorney it could cost as much as $2,200 to $2,500 in legal fees alone to pursue the matter.

“I feel terrible about doing that,” Cleary said, “but they’re going to treat it as any other District Court case. It’s a very tedious process. . . . The thing might literally drag on for years. As of today, no lawyer can tell you how much time he’s going to have to spend on this.”

The lawyer, Cleary said, decided to handle the case on his own.

“What they’re telling everybody is, ‘Go over there and wait in line for a year,’ ” Cleary said. “I believe firmly in a strict enforcement of drug laws. There should be vigor and enthusiasm, but also a sense of proportionality.”