THE WAR ON POT - BUSTED!

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."