If Larry Gould was the sophisticated heroin dealer they said he was, he would have seen the whole thing coming. Fearing a wire, he would have patted down the man who had piles of cash to burn buying very high quality heroin for his wealthy girlfriend. He would have asked to see his driver's license, or noticed that he never got a glimpse of the guy's car, that the man took a while to figure out that the packets of heroin he was buying were a little too light. He might have seen the white Bronco that tailed him to and from the Tom Thumb where he met his connection. He wouldn't have been the least surprised when his new acquaintance turned out to be an undercover cop.
But Gould wasn't the kind of drug dealer who knew how to spot a police sting. He was just an addict. Had been since he was 12. A small-time hustler who knew just enough scams to feed his habit. He's not the kind of guy who's supposed to be doing hard time under Minnesota's 7-year-old "get-tough" drug law changes, which critics say have clogged prisons with addicts instead of the big-time drug dealers they were supposed to bring down. Last month, the Minnesota Supreme Court upheld Gould's conviction in a 1993 Bureau of Criminal Apprehension sting and the 68-month sentence it netted him. The case, say appeals attorneys, illustrates a good deal of what's wrong with drug law "reforms."
Gould was the kind of guy narcotics agents refer to as a user-seller. Certainly, back in March of 1993, when he got caught up in a BCA sting, his lifestyle wasn't that of a successful trafficker. He was drawing $500 a month in SSI for drug dependency and living with his girlfriend of 28 years, who was on welfare, and their three kids. A few years before, Gould's mother had given him the down payment for a small North Minneapolis house, and the couple struggled to make the $400 mortgage every month.
It was the same neighborhood where he grew up, attended North High, and came to the cops' attention for skipping school. They sent him to reform school in Glen Lake, and then to the juvy hall at Red Wing. He started his first stint in prison as an adult at the age of 17, when he got arrested along with some friends who had stolen a car and driven to Illinois. He did five years for that joyride. When he got out, it was the '70s, and everyone was doing drugs. He and his girlfriend performed their own "hippie wedding" and flirted with LSD.
By the time anti-drug sentiments hardened in the 1980s, admits Gould, "I was strung out, withdrawn, in a shell. I was only really good at surviving. I'd get one gram of dope and cut it down to pay for my habit. I wasn't harming anyone but myself." He got stopped with drugs a couple of times--once in a motel with a dirty needle and works and the residue from the heroin he'd just put in his arm.
In March 1993, he was finally trying to get clean when Richard Jerosa, an old acquaintance, started coming around, trying to score a fix. The first few times the guy showed up, Gould told him to go away, that he was enrolled in a methadone program. But Jerosa argued that he was sick. He needed a fix and he knew Gould knew where to get some. One morning he even broke into Gould's house, harassing Gould's live-in girlfriend, wailing that he was jonesing and sick. Eventually, Gould caved.
Jerosa said he knew someone who wanted to buy two grams, enough to supply a serious junkie for two days. The man would finance the transaction, pay Gould $50, and let them shave off a dose. So when Jerosa and BCA Special Agent John Tyndall showed up at Gould's house, he got in the front passenger seat of Jerosa's shiny new car and started giving directions to a Tom Thumb in South Minneapolis near the airport.
Gould just wanted to get the deal over and done with and talked very little on the way. From the back seat, Tyndall explained that his girlfriend was an addict and that he was making this deal because he didn't want her on the streets making her own buys. There was no telling what she'd do for a fix. Gould said he'd rather help get her into the methadone program he'd been attending, but Tyndall was interested only in the two grams they were on their way to score. So Gould told him each gram would cost $600, and then turned back around and quit talking.
At the store, Gould took $1,200 from Tyndall, got out of the car, and disappeared for 15 minutes. The baggie he came back with was a little light because Gould had sliced off two doses, one for the snitch and one for himself. Who was he kidding? With the heroin actually in his hands there was no chance he wasn't going to shoot up, too.
Later, back at Gould's place, he and Jerosa melted down the two-tenths of a gram of black tar together. When the heroin hit his bloodstream, Gould forgot how bad he'd wanted to get clean, about how methadone helped stave off the withdrawal pains. He forgot about his promise to his old lady that he and his friends wouldn't treat the basement as a shooting gallery anymore. He was using again. When Jerosa called again a couple of days later, Gould again protested that he "really did not want to do this." But it didn't take much to convince him to make another buy for the cop.
Special Agent Tyndall asked Gould to make three transactions altogether, which he would later explain was necessary in order to nail the "bigger fish" Gould was buying from. Then, without making a bust or revealing he was a cop, he disappeared from Gould's life, which by then had reverted back to a constant quest for a fix. In fact, it was the worst stretch yet for Gould, who spent the next year trying to get back under control, at times craving heroin and methadone at the same time. While Gould struggled to get back off heroin, police presumably were using Jerosa to find and snare other drug dealers.
Sixteen months later, the cops showed up to arrest Gould at his house while he and his girlfriend were unpacking from a camping trip up north. At trial, Gould was convicted of three felony charges of third-degree narcotics possession. Since he had a record, when it came time to sentence him, the first charge earned him 44 months prison time. It also gave him one more "prior," so that when he was sentenced for the second count, he got 65 months. By the time they got to the third charge, Gould was looking at nearly six years in a state prison--the kind of hard time big-league dealers are supposed to do.
The BCA, meanwhile, never even arrested Gould's alleged supplier, Gerald Huisman. Turns out every cop in town was after the "big fish," who was eventually arrested for making five large sales to an undercover Hennepin County Sheriff's deputy. Nothing in his court file explains why three of the charges were dismissed or whether he cooperated with police, but Huisman was sentenced to just nine months in the workhouse. He was out on probation before Gould even went to trial.
There are few targets more perfect for a police narcotics operation than a guy in a methadone program, according to Scott Swanson, the public defender who recently appealed Gould's case to the state Supreme Court. A recovering drug user himself, Swanson points out that for starters, Gould was guaranteed to have sources for buying heroin. Second, he's an addict, which means that at some point he was almost certain to be swayed by the prospect of having dope in his hands.
And it's nearly impossible for a man like Gould to defend himself in court by arguing that he's the victim of police entrapment. In order to prove entrapment, defendants must show that they are not predisposed to commit the offense they were lured or pushed into doing. Heroin addicts with drug-related criminal records--no matter how picayune--are hard-pressed to prove they aren't predisposed to buy and sell drugs. And that just makes it all the easier for cops to control exactly what the targets of a sting get charged with and how much time they do for it. In Gould's case, Agent Tyndall asked for two grams of heroin, which made it a third-degree felony, the lowest level at which he would have gotten prison time.
Little is publicly known about the origins of the undercover operation that snared Gould. Jerosa, the informant, had originally approached the federal Drug Enforcement Administration, which turned him over to the BCA. At Gould's trial, Tyndall testified that the snitch was being paid, but said he didn't know whether he was attempting to get out from under some charges of his own. Other BCA agents testified that they knew Gould was in a methadone program, but in their eyes, that didn't make any difference.
Tyndall also testified that the BCA had Gould make three separate buys because they needed more evidence about who his source was. The BCA had its suspicions on the first buy. The agent in charge of the undercover operation had already gotten Huisman's name from Minneapolis police. Plus, the informant had said he thought Huisman was Gould's supplier.
During each of the transactions, BCA agents followed Gould when he left the car and went to pick up Tyndall's heroin. On both the second and third buys the agents saw Huisman's car. On the third buy, they watched as Gould went into Huisman's house. Later, the BCA surveyed local law-enforcement agencies and learned that two other sets of cops were watching Huisman. The Hennepin County Sheriff had the best case--still another informant who was making buys directly from him.
Through Gould, the BCA gave Huisman $3,600 in taxpayers' money and the snitch $300 per buy. That was enough, Tyndall figured, if there was no bigger fish to fry. Eventually, they charged Gould in all three incidents.
Assistant Minnesota Attorney General John Docherty, one of the two prosecutors in Gould's case, says he typically charges defendants separately for each individual drug sale even if they're part of an ongoing sting. The state charged Gould with all three sales because it had solid evidence in each. "Sentencing manipulation can happen," Docherty concedes. "I won't deny that there are a minimum of cops who will, in the jargon, buy the guidelines." But in Gould's case, he says, the BCA agents made the second and third buys as part of a legitimate investigation. Besides, "imagine what it would mean if they had to arrest drug offenders on the first buy," Docherty adds. "Courts would be even more clogged with street-level dealers. And then you'd be constantly chasing the same people off of the same street corners.
"The facts that came out at trial were that [Gould] had a history of sales and he was falling all over himself to sell to these agents," he continues. "I think that the punishment fits the crime." From Gould's perspective, there's only one scenario under which it could have been worse: If the AG's office had used a clause in the drug laws that allows it to add up any individual sales occurring within a 90-day period, Gould could have gotten 98 months.
Gould's attorney complains that prosecutors could have made their case on the first deal alone. Trying Gould on three separate charges drove his sentence up by two years, and the cost of his incarceration to taxpayers up some $60,000. That kind of punishment was meant to be meted out to habitual drug dealers, Swanson insists.
Minnesota's drug laws contemplate punishing three different kinds of dealers: low-level street sellers, the mid-level distributors who supply them, and the really big-time dealers best described as wholesalers. Police and prosecutors decide which category to charge defendants in; once they've been convicted, judges turn to a set of guidelines to determine their sentence.
Created to ensure that there was some uniformity in the way crimes were punished by Minnesota's different courts, the guidelines are a grid with the levels of severity of different crimes listed on one side and the number of "points" a defendant has for prior convictions on the other. Judges are allowed to adjust a sentence up or down to reflect extenuating circumstances in any given case, which they do about a third of the time.
Defense attorneys complain that the guidelines give police and prosecutors too much power to determine a defendant's crime and sentence. Before the guidelines were applied to drug offenses, police usually charged someone with either possession or possession with intent to sell. If someone was caught with an unusually large amount, the judge adjusted the sentence accordingly. Since sentences weren't necessarily pegged to the amount of drugs police found, there was little incentive to drive up the amount of drugs someone sold an undercover cop, or to set up multiple buys.
In Gould's case, the two extra "priors" he racked up at his trial pushed him all the way to the right hand side of the sentencing grid, landing him a sentence of nearly six years. That's the kind of hard time otherwise reserved for rapists, kidnappers, and robbers, all presumed to be dangerous offenders.
Which raises a question: If Larry Gould was as dangerous as those other criminals, why was he allowed to stay on the streets for nearly a year and a half after he ceased to be the target of the BCA's sting operation? Did they just get to the end of the sting and need another bust to justify their time and expense?
"If the police goal is to eradicate drug use and somehow protect the community, it seems difficult to understand the police tactic in this case--to let [Gould], who is dealing heroin, a very serious drug, remain on the street for much more than a year before his arrest," Swanson argued when he appealed the case to the state Supreme Court. "If he truly is as dangerous an offender as other offenders convicted at severity level VI, one wonders why police did not immediately arrest him.... The primary goal seems to be to increase the length of the sentence." And longer sentences, simply put, make police and prosecutors look better.
"All of these people have to report their convictions to various agencies. They get a lot of [drug enforcement] money from the federal government and they have to report what they do," says Swanson. "A lot of this game is trying to lock people up and if they can lock them up for longer, the numbers go even higher. There's lots of money riding on the number of convictions."
Trying to make a case look as substantive as possible is a natural inclination for any cop, notes Johnathan Caulkins, a professor of public policy at Carnegie Mellon University who has studied the effectiveness of the drug war for the RAND Corporation: "There are all kinds of instances in which prosecutors or law enforcement will try to find ways to make the highest penalty and the longest sentence. In some ways, that's what they're supposed to do. We don't expect them to see the big picture."
There are legitimate reasons for extending a drug sting, Swanson adds, such as making sure there's enough proof to take a case to trial. But that's not true in Gould's case. Police had rock-solid evidence with which to convict and imprison him after the first sale. And they already knew the identity of the bigger target he could get them, so they had no incentive to use extra charges to push him into becoming an informant. So why charge him with three separate felonies? When Gould went to trial in January 1995, his attorney had hoped he'd do time for just one charge, which would have meant 44 months.
Federal courts have recognized that undercover narcotics operations present police with multiple opportunities to drive up a convict's sentence, a practice known as sentencing entrapment or sentencing manipulation. Cops can keep making buys from a single defendant until he or she has reached a desired threshold of criminality, or they can ask for an unusually large quantity of drugs or a different drug altogether.
In the most prominent test case to reach federal courts so far, undercover agents urged a coke dealer to cook his drugs into crack, which carries a higher penalty. The dealer obliged because he could make more money that way. (In 1992, Minnesota courts outlawed sentencing discrepancies between crack and cocaine. The Legislature reacted by raising sentences for cocaine to the level set for crack. President Clinton recently proposed narrowing the crack-cocaine gap in federal sentences in much the same way.)
"Drug cops know what the sentences are. They're taught that in school. It's not unusual that they get a guy buried and then arrest him," says St. Paul criminal defense attorney Earl Gray. "What you have, basically, is police officers getting their dream 'cause they can decide what crime to arrest him for, how long he's going to get.
"It's not unusual, it's a whole new world. And it doesn't even seem to offend jurors anymore."
Locally, defense attorneys say police regularly set quotas for their informants. They offer to let someone off or reduce their charges based on the quantity of drugs possessed by the people the informants help them nail. "If you can get three felonies that stick, we'll drop the charges or help you out," is how Swanson describes a typical deal.
In order to prove that he's the victim of sentencing entrapment, a defendant must prove that police conduct in his case was clearly out of line. But it's virtually impossible to think up an undercover narcotics investigation in which it isn't possible for prosecutors to argue, as they did in Gould's case, that they were after the next guy in the food chain.
"No defense lawyer is going to put police on the stand and say, 'Why did you do this this way?'" explains state public defender Charlann Winking, who handled the appeal in a case similar to Gould's that was also recently upheld by the state Supreme Court. "It's virtually impossible for a defendant to get his clients to come in and testify that he's a small-time dealer or only deals marijuana. How would you prove that?"
Ramsey County charged Winking's client, Anthony Soto, with one count of cocaine dealing and asked him to help them nail his supplier, she says. When Soto refused to cooperate, prosecutors added on three more charges based on additional sales Soto made to an undercover cop.
"Everybody knows about it, and everybody says, 'We don't use it to get bigger sentences,'" says Swanson. "The attorney general always charges these things as separate offenses. In Hennepin County, they don't. Ramsey County just charges one, but [adds the others back on] if you go to trial instead of accepting a plea."
"It's an orchestrated effort by law enforcement to raise the ante as much as possible," agrees Minneapolis criminal attorney Frederick Goetz. "If they can turn a small-ante dealer into a large dealer, they will."
Gould's case encapsulates several of the problems with Minnesota's drug laws, which were overhauled in 1989 in an effort to make it easier for police and prosecutors to put more big-time dealers behind bars. Under the old drug laws, there were just two kinds of drug crimes, possession and possession with intent to sell. In order for prosecutors to win long sentences, they had to prove a defendant planned to sell the drugs he was caught with. Judges were responsible for adjusting sentences up or down depending on how much each defendant was caught with.
The new laws include five different categories based on the weight of the drugs a defendant is caught with, as well as his intentions. The end result has been to clog courts and prisons with hundreds of people like Gould, referred to by law enforcement as the user-sellers, the guys who buy and sell just enough to support their own habits.
According to the Minnesota Sentencing Guidelines Commission, the number of people sentenced yearly across the state for felony drug offenses rose 164 percent between 1985 and 1995, to 1,719. During the same decade, the number of arrests rose 155 percent. Drug offenders are more likely than other criminals to have prior felony convictions. Drug offenders convicted of the least serious crimes are most likely to reoffend.
The statistics are most staggering when it comes to the racial makeup of the drug offenders in prison: During that same decade, the number of whites sentenced for drug offenses increased by 56 percent, while the number of African Americans rose 1,023 percent. In 1995, half of all of those sentenced for drug offenses were minorities. Forty percent were African American, as opposed to 24 percent of convicts sentenced for all crimes.
The most obvious reason why the number of minorities doing time has shot up is that drug crimes are so-called victimless crimes. Unlike other offenses, where police are called to the scene of a crime and then investigate, in drug cases police frequently pick a particular community where they will concentrate their efforts and then go out and dig up crimes. The predictable result of the higher number of undercover operations and the tough, new thresholds is that currently there aren't enough prison beds in the state for violent offenders.
In 1994, lawmakers asked the commission to study whether the sentencing policies "are effective in furthering the goals of protecting the public safety and coordinating correctional resources with sentencing policy." The commission recommended reducing sentences for some drug offenders, which won support from judges, prison officials, and the governor, but failed to sway the Legislature, many of whose members fear softening any criminal sentences. Lawmakers asked the commission to "further study the issues," but that was 1995, the year Minneapolis's murder rate skyrocketed.
Swanson had hoped that the Minnesota Supreme Court would address the issues earlier this year when it heard Gould's and Soto's cases. The court, however, said the laws were properly applied. In Soto's case, the justices acknowledged that the drug laws target a disproportionate number of minorities. But they concluded, in an opinion written by Justice Esther Tomljanovich, that that's an issue most effectively addressed by the Sentencing Guidelines Commission--of which Tomljanovich happens to be a member. The commission in turn says the problem should be addressed by the Legislature.
Swanson dismisses as buck-passing the idea that the Legislature is the only place the sentencing problems can be fixed. The commission can change its guidelines after holding public hearings, he notes, although the changes must be reviewed by the Legislature. And the Supreme Court forges precedent all the time.
Even Gov. Arne Carlson has acknowledged that the system isn't working, and that the Legislature needs to overhaul the laws again. But that's simply not going to happen. In fact, taking a page from the 1992 decision that created parity among crack and cocaine defendants by raising penalties for coke, the Legislature this year lowered the threshold for heroin to 10 grams, to equal that of crack and cocaine. Lower thresholds, Swanson and commission Director Debra Dailey argue, will only compound the system's problems.
Minnesota's thresholds are already lower--and sentences longer--than those used by most states. Cocaine sales start earning higher sentences in Minnesota at three grams, vs. 10 grams in Wisconsin, 25 in federal courts, 50 in Michigan and 500 grams in Iowa. Minnesota punishes a first-time offender with six grams of cocaine with four years in prison, a level at which no other state mandates prison time.
"Because of how cases are charged out, you may see 86 months in one and probation in another," concedes Dailey. "We do see a wide variation in charges. We don't know what determines what a prosecutor does when it comes to charging." In many respects, she adds, the old system that left sentencing decisions up to the judges worked better. "Departures are a better approach to dealing with drug offenders. The majority of the people caught in Minnesota are mules, users, and small-time sellers."
Minnesota's drug law reforms mirrored a similar crackdown at the federal level, which reached its nadir during the administration of George Bush. On his watch, mandatory prison terms were instituted for progressively smaller quantities of drugs, the number of people serving federal prison sentences for drugs quadrupled between 1980 and 1992, and the amount of money available to narcotics agents across the board skyrocketed.
It's no secret that mandatory minimum sentences have clogged prisons with drug offenders. This month, the RAND Corp. issued a study concluding that while mandatory minimums are popular with voters, they aren't a cost-effective method for reducing drug sales, use, or drug-related crime. Researchers found that for every $1 million spent on incarcerating drug offenders for longer periods, cocaine use in the United States was reduced by some 13 kilograms. The same $1 million spent on conventional law enforcement reduced use by 27 kilos. Spent on substance-abuse treatment for heavy users, however, it reduces cocaine consumption by more than 100 kilograms.
The researchers uncovered one important caveat: When dealers are faced with longer sentences, prices on the street go up, which contributes to an immediate drop in use. The cost of keeping dealers in jail for longer periods is felt only later. However, money spent on treatment now pays off mostly in the long term. "Mandatory minimums appear cost-effective only to the highly myopic," the researchers note. "We find an exception in the case of the highest-level dealers--those who value their time most highly and are hardest to apprehend--where sentences of mandatory minimum length appear to be the most cost-effective approach. However, current mandatory minimum laws are not focused on those dealers."
Even if politicians could be weaned from the PR fix afforded by passing tougher drug laws, there's still the apparatus that has grown up around the war on drugs to contend with. Critics charge that the anti-drug bureaucracy has become so institutionalized that the criminals are almost beside the point. Last year, the federal government spent some $14 billion on the war on drugs. That means big money for law-enforcement agencies, schools to train narcotics officers, multi-agency drug task forces, and both public and private prisons to house the skyrocketing number of users being locked up. At last count, there were between 30 and 50 federal agencies whose budgets and missions were tied to the prosecution of the drug war.
And don't forget forfeiture laws, adds Swanson. Police agencies have come to depend on the money and property they seize during drug operations. In Minnesota, 70 percent of seized drug cash goes to the arresting agency--which might be one clue why at least three law-enforcement agencies were looking at Gould's alleged supplier, Huisman.
Law enforcement agencies nationwide take in an estimated $1 billion in forfeited property every year. Closer to home, one public defender estimates that every year, the Minneapolis Police Department makes roughly half a million dollars through drug-asset forfeitures.
"How many cops lose their jobs if they lose drug money?" asks Swanson. "How many prosecutors?"
Gould still has 18 months to go at the minimum-security state prison in Red Wing--ironically, the same facility where he started his heroin-induced prison career some 35 years ago as a juvenile delinquent. He's the head of his unit's chapter of Narcotics Anonymous, the gardener in charge of his cell block's vegetable plot, and says he's been born again, accepted Jesus Christ into his heart.
"If I use when I get out, I'll die," he says. "Since I've been in here a lot of my friends have died on the streets of overdoses." An old acquaintance recently tested positive for HIV. "I think about that," he says, "I could have gotten AIDS. With how many times I used behind other people, I should have it." His fingers tighten their grip on his coffee cup; a souvenir from the Faribault prison, its logo says "Hard Time Cafe."
His two sons and one stepson are in their 20s now, and he wants to live up to their expectations. He and his lady friend of 28 years have finally concluded that their chemistry is all wrong, but they're good friends. When he gets out, at the age of 52, maybe he can get an auto-body job like he was trained for by the corrections system.
But as he talks, he almost seems to be trying out the idea of a clean life, seeing if it flies. He's been off heroin in prison, although he says he could probably get it if he tried. He's already thinking about how he'll have to rely mostly on his willpower to stay clean this time on the outside. Larry Gould is less sure he'll be able to stand firm if an old friend, perhaps a snitch with an extra incentive to get him to buy, comes sniffing around.
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