Part Five: CRIME AND PUNISHMENT|
by Andrew Schneider and Mary Pat Flaherty
A Vermont man was found guilty of growing six marijuana plants. He received a suspended sentence and was ordered to do 50 hours of community work. But there was an added penalty: He and his family nearly lost their 49-acre farm.
In Washington, where the maximum criminal penalty could have been a $10,000 fine, an elderly couple served 60 days for growing 35 marijuana plants – and lost their $100,000 house.
In Bismarck, N.D., a young couple received suspended sentences after pleading guilty to growing marijuana. The judge who ordered them to forfeit the three-bedroom house where they lived with their three children worried from the bench that he might be throwing them onto the welfare rolls. But he says he had no choice.
All three families are the victims of a federal law that allows the government to take homes, lands, vehicles and other possessions from Americans convicted of possessing drugs or violating a host of other statutes.
The law was intended to penalize major drug dealers and organized crime figures by taking their property, selling it and returning the proceeds to the cops for other investigations. But the dollar return to the cops has been so great that it’s now being used for scores of crimes, some no more than misdemeanors by first-time law-breakers.
Because of the law, more and more people are losing their property. For many, the punishment no longer fits the crime.
Community outrage helped Robert Machin and Joann Lidell keep their farm in South Washington, Vt., after the federal government tried to seize it in 1989.
Signs decrying “Cruel and unusual punishment – remember the Eighth Amendment” were posted along local roads. Lawmakers and politicians got involved. Nearly all their neighbors signed petitions.
Machin and Lidell, advocates of the back-to-nature movement, support themselves and their three children off their 49 acres. They boil maple sap into syrup, press apples into cider and educate their children in the rustic, gas-lit rooms of their eight-sided wooden house.
Their trouble began in September 1988, when a teenager busted for a traffic violation traded his way out of a ticket by telling state police he could show them 200 marijuana plants growing on Machin’s farm.
Police raided the property and found only six plants, which Machin admitted to growing.
He received a suspended sentence and spent 50 hours doing community service. Tranquility returned to the Machin farm, but the government wasn’t through.
On Aug. 12, 1989, U.S. Attorney George Terwilliger III filed action to seize the Machin house and property. Vermont state law does not permit the seizures of a home, so the case was pursued through federal courts.
But the political pressure and the outpouring of concern from the community forced Terwilliger, who also runs the Justice Department’s forfeiture fund, to back off.
“The Machin case is one where public scrutiny forced the government to do it right. What about all the others where no one is watching?” Machin’s lawyer, Richard Rubin, asks.
There was little public scrutiny in November 1989 after Robert and Brenda Schmalz pleaded guilty to marijuana charges in Bismarck, N.D., and got probation.
North Dakota state law does not allow the forfeiture of real estate involved in crimes. So, in order to seize the house, prosecutors took the Schmalz case to federal court, says federal Judge Patrick Conmy, who got the case. Conmy said at the hearing that the couple had grown marijuana in their basement for their own use. Even so, because they used their house in the crime, Conmy says, he had no choice but to order them to forfeit their home.
“I don’t really care if somebody loses their Cadillac, or their coin collection, the cash that’s with the drugs. That’s fine. It’s looked on as a hazard of doing business,” the federal judge says.
“But you get a husband, wife and several children in a three-bedroom home and the husband raises marijuana in the basement with some grow lights, and you take their house for that. That, to me, is different.
The marijuana Jack Blahnik grew in his yard controlled severe pain from his cluster headaches, he says.
Blahnik completed 68 years of his life without a single brush with the police. But in his 69th year, he and his 61-year-old wife, Patricia, were arrested, convicted and jailed for 60 days for growing 35 marijuana plants.
On March 6, 1990, the state of Washington also seized the couple’s three- bedroom home and the five acres it sat on.
Blahnik admits he was growing the dope.
“I showed it to the police, I took them out to the shed in the back yard and told them that I was growing the stuff for my own use, to try to control the pain from these cluster headaches that I have,” Blahnik says.
Blahnik heard that marijuana helps such headaches, and his doctor confirmed its value.
“My wife was against my growing the stuff, but she went to jail because she copied some growing instructions for me,” Blahnik says.
The statute under which the Blahnik’s house was seized requires the state to provide “evidence which demonstrated the offender’s intent to engage in commercial activity.” The police never made that link, affidavits show.
The Blahnik’s $100,000 property in Woodland, about 130 miles south of Seattle, was their nest egg.
“It was our life savings,” Blahnik says. “Everything we had went into that house and land.”
Police charged that drug sales financed the house.
“They knew that wasn’t true,” Mrs. Blahnik says. “Our bank statements and tax forms show that everything we ever put into buying that house, and everything else we have, came from money that we worked hard 40 years to save.”
The Blahniks’ lawyer, Michael McLean, calls the seizure unconstitutional and punitive.
“The maximum fine for this crime in the state of Washington, is $10,000. The Blahnik’s property was worth 10 times that amount.”
Blahnik does not question that he should be punished for breaking the law. However, he questions the manner in which it was done.
“The prosecuting attorney went on television, putting our mug shots on and claiming they had made the biggest seizure ever made in either Washington or Oregon and we could possible be connected to a nationwide drug ring,” Blahnik says.
“They failed to mention that their big seizure was our retirement money,” Blahnik says.
Sometimes the government’s push to seize property drives it to spend far more than it makes. For example, it’s estimated that the state of Iowa spent more than $100,000 defending the seizure of a $6,000 fishing boat.
It has been three years since the Iowa Department of Natural Resources agents charged Dickey Kaster with having three illegally caught fish.
the officers stopped Kaster, a 63-year-old retired gas company foreman, leaving Clear Lake. In the back of his truck the fish cops found a silver bass, a northern pike and a muskie, and said they had “net marks” on them. Kaster was charged with gill-netting, a misdemeanor in Iowa punishable at the time by up to 30 days in jail and a $100 fine for each fish. Altogether, he paid about $500 in fines.
But the officers also seized Kaster’s 16-foot boat, 40-hp motor and trailer – worth about $6,000.
“No doubt they had net marks on them, but so do 75 percent of the fish in the lake. I caught them with a rod and night crawlers, ” Kaster says.
District Court Judge Stephen Carroll said the seizure was unconstitutional and ordered the boat, motor and trailer returned.
But Cerro Gordo County Attorney Paul Martin appealed to the Iowa Supreme Court, which ruled the property could be seized.
Kaster’s saga of the three fish has been on local court dockets four times and before the Iowa Supreme Court twice.
A court clerk in Mason City estimated that “probably a lot more than $100,000” was spent in pursuit of justice for those fish.
Kaster says he knows exactly what the ordeal cost him.
“Just about everything I own. I auctioned off the inventory of my bait and tackle shop at about a dime on the dollar and sold my house to pay the legal bills and keep the bank happy,” he says.
“I didn’t get my boat back, but I’m still trying,” he says. “You can’t let the government ignore the Constitution. I’m fighting this over a boat that shouldn’t have been taken, but it really deals with how fair our government is supposed to be.”
And fairness is what is worrying Don and Ruth Churchill, who are fighting to keep their family farm in Indiana.
“Salt of the earth” and “good God-fearing people” are how some neighbors in the southern Indiana farming community describe the 54-year-old couple.
In 1987, Churchill had found some marijuana plants mixed in with his corn and immediately notified state police.
Farmers in the area were aware that a group called “the Cornbread Mafia” was planting marijuana in other people’s cornfields throughout nine Midwestern states.
The cops destroyed the crop, and the Churchills thought they were done with marijuana.
But two years later, while they were watching a TV newscast about thousands of marijuana plants being found on farmland, they recognized the land as theirs.
The next morning, the Churchills went to the sheriff to say it was their land. Ten days later, state police arrived at their door to arrest Churchill and his 34-year-old son, David, charging them with numerous felony counts, including possession of and cultivating marijuana.
An informant had reported that he saw Churchill, his son and a third, unidentified man tending marijuana crops on land they own in Harrison County. The informant later reported that dope was also growing on other Churchill land in Crawford County, court affidavits show.
In February, four months before their first criminal trial, the federal government – prodded by state police who would get the bulk of any forfeiture proceeds – seized the 149 acres the Churchills own in both counties.
They are awaiting the outcome of the case.
While the Churchills anguish over the possible loss of their property, they don’t dispute that police found thousands of marijuana plants growing on their two tracts.
What Churchill disputes is that he or anyone else in his family grew it.
“I farm part time. We plant in the spring and harvest in the fall and don’t mess with the corn in between.” Before the large cache of marijuana was discovered, “we hadn’t been out there for weeks,” says Churchill, who leaves for work at 4 a.m. to get to the Ford truck plant 43 miles away in Louisville, where he has worked for 27 years.
Planting of “no-till” crops is very common in the area as a way to make extra money.
The farmland, especially valuable because it contains the largest natural spring in Indiana, has been in Mrs. Churchill’s family for generations.
Standing on the steps of a woodframe chapel in the midst of some of the land the government is trying to take, Mrs. Churchill expressed her disillusionment.
“This church is built on my family’s land. I was baptized here, and Don and I were married here. This used to be a place of peace and happiness,” Mrs. Churchill says. “Now, this place, our community, our lives, our faith in government, everything has changed.
“If they take our land, I’m going to lose faith in everything,” she says.
Ron Simpson, the state’s primary persecutor of the criminal charges, questions the fairness of the federal government’s seizure of the Churchills’ land when most of it was inherited from the wife’s family.
“Under our system, if someone is punished, they should have been charged with something, and we’ve brought no charges against Mrs. Churchill. We have no evidence that she know anything about the marijuana that was growing,” Simpson says. “You just have to wonder about how fair this seizure is,” Churchill says.
“We assumed the legal system was fair, that if we were innocent, we had nothing to worry about. Now I’m in one court defending myself and my son against drug charges, and in another court, they’re trying to take my land away. I’m worrying about a lot of things now.”
The issues of proportionality and fairness pose challenges for even strong supporters of forfeiture laws, including Gwen Holden, a director of the National Criminal Justice Association in Washington, D.C., a group that represents state law enforcement interests.
If an individual is clearly a major trafficker and everything he ever bought is dirty, no one has major heartburn, If someone owns 200 acres of land and there’s drugs on a corner ant the guy never knew it was there, then the rule of reason should kick in.” Ms. Holden says. “You shouldn’t be taking the whole farm if he didn’t know it was there.”
Taking Bradshaw Bowman’s whole farm is exactly what the government is trying to do.
The 80-year-old man was arrested for growing marijuana, and the local sheriff has seized his 160-acre ranch in the breathtaking high desert area of southern Utah.
A convicted drug dealer-turned sheriff’s informant blew the whistle on a handful of marijuana plants growing on Bowman’s property.
Bowman’s “Calf Creek Ranch” is 300 miles south of Salt Lake City, at the entrance to a National Scenic Vista area of stunning canyons.
The marijuana was found on a hiking trail far from Bowman’s house.
“I’ve had this property for almost 20 years, and it’s absolute heaven. I love this place. My wife’s buried here,:” Bowman says. “I can’t believe they’re trying to take it away from me, and I didn’t even know the stuff was growing there.
“I used to serve on jury duty, but at 70 they make you stop. In all my time sitting in the jury box, I never heard of the Constitution treated this way.”
Garfield County Attorney Wallace Lee, who is prosecuting both the criminal charges and the civil effort to seize Bowman’s house, says, “He’s getting his day in court.”
“The fact that he’s 80 years old has no bearing on the case at all and certainly not with me,” Lee says. “I’m out to prosecute a criminal case here, and it doesn’t matter whose house it is.”
Bowman’s lawyer, Marcus Taylor says: “This is the classic example of the absurdity, injustice and almost immoral nature of forfeiture.
“You could hold that entire bundle of 67 plants in one hand.”
The following is a side box on Part Five: