June-July 97

THE BILL OF RIGHTS:
HOSTAGE IN THE WAR ON DRUGS

". . . it is our judgment that the war on drugs has failed, that it is diverting intelligent energy away from how to deal with the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial, and penal procedures associated with police states."
--William F. Buckley, Jr. Ed., National Review, 2/12/96

The first shot fired in our now almost-Hundred Years War on drugs was the Harrison Narcotics Act of 1914--the first national law to criminalize drugs. The Harrison Narcotics Act came about through the efforts of politicians, as well as of certain religious groups that viewed taking psychoactive drugs as sinful. These efforts eventually led to penal statutes under which the "sinners" become criminals and go to jail. Thus was laid the cornerstone of today's U.S. anti-drug laws, and thus began the demonization of "addicts," "pushers," "junkies," "marijuana," "heroin," etc.

President Richard M. Nixon declared an "all out global war on the drug menace" in 1972 after having proclaimed it a "national emergency." Bill Wylie Kellerman, a contributing editor for Sojourners magazine, characterizes the war as politically-motivated, parlayed by later administrations, particularly those of Reagan and Bush, into an effort to fill the "immediate need to find new 'enemies' to replace 'communists' in the ongoing manufacture of public consensus."

Like all wars, the drug war is extremely expensive, currently costing the federal government $14 billion per year. According to Craig Horowitz, this figure excludes war expenditures of state and local governments, which add another estimated $14 billion per year, and also excludes incarceration costs, which in 1994 were more than $315 million for the 10,000 people sentenced in that year alone for nonviolent drug offenses ("The No Win War," New Yorker, February 5, 1996). Horowitz estimates that "the direct budgetary costs of drug prohibition in America probably approaches $100 billion yearly." For comparison, note that the budget for the Department of Defense for the current fiscal year is approximately $267 billion (Institute for Better Education through Resource Technology).

It is also a war that holds hostage an increasing number of our Constitutionally-granted civil liberties in a virtual de facto repeal of our Bill of Rights.


The Fourth Amendment
Amendment 4. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.

The U.S. Supreme Court has relaxed criteria for securing search warrants, creating what Robert W. Sweet called the "drug exception to the Fourth Amendment" ("The War on Drugs Is Lost" (a symposium), National Review, February 12, 1996). Issuance of search warrants is now permitted based on anonymous tips and even on tips from informants who are known to be corrupt and unreliable. Evidence obtained under defective search warrants has been upheld if officers executing the warrant were deemed to have acted in "good faith." Warrantless searches of fields, barns, automobiles, and private property near residences are permitted, as well as warrantless use of narcotics-sniffing dogs and unrestricted searches of watercraft on inland waterways and on the high seas. Authorities can also sift through citizens' trash without a warrant. The U.S. Supreme Court's docket includes consideration of whether police will be allowed to enter without knocking when they have a search warrant for drugs.

For two hundred years, it was customary for police to knock on the door and say that they had a search warrant. No longer is that true. "No-knock" laws now permit police to literally-and without warning-break down doors when they have search warrants. William Weir recounts several examples (In the Shadow of the Dope Fiend: America's War on Drugs, 1995). In one incident, several police officers broke down the door of a Connecticut family's home. They yelled at the family, pointed a gun at one of the children, and when he protested, an officer picked him up and threw him across the room. All through this, the mother was asking why the police had broken into their home. Finally, she asked to see the search warrant. It was for apartment 7 in their apartment building. They lived in apartment 6.

According to Weir, current "stop-and-frisk" laws seem to clearly violate the Fourth Amendment. Such stops can be made of pedestrians or of people in automobiles and are often the result of "profiling." Profiles are compiled by FBI psychologists and describe the appearance, actions, and mannerisms of persons who may have committed various types of crimes, including drug crimes. Drug courier profiles, increasingly used by federal, state, and local authorities, are criticized by civil libertarians because they are based on a person's looks or behavioral characteristics--or stereotypes--rather than on an indication that a person has actually committed a crime.

Appearing on the U.S. Drug Enforcement Agency's list of 155 suspicious characteristics are: black male, black female, Hispanic, individual traveling alone, two or more people traveling together, walking slowly, walking quickly, and being tense. Steven Wisotsky (Beyond the War on Drugs: Overcoming a Failed Public Policy, 1990) also lists persons driving rental cars, scrupulous obedience to traffic laws, drivers wearing "lots of gold" or who do not "fit the vehicle," cars riding low in the back, and cars with out-of-state plates if there is no luggage or clothing visible. As a result, some critics of profiling say that they may lead to groundless searches of black and other minorities whom police believe are more likely to be carrying drugs. This criticism gains credibility by the fact that blacks are arrested at a rate four to five times that of whites, although most drug crimes are committed by whites.

The Fifth Amendment

Amendment 5. No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.
An aggressive assault on justice emerged with the 1984 passage of the Comprehensive Crime Control (CCC) Act, which rolled back many rights of the criminally accused and which some experts call "the most repressive piece of legislation in American history." (See Arnold Trebach, The Great Drug War and Radical Proposals that Could Make America Safe Again, 1987). Under the CCC Act, pretrial bail can be dispensed with for most charges-- even for those arrested for nonviolent crimes like trafficking--if the court decides upon "clear and convincing evidence" that detention is necessary to insure appearance in court of the defendant or to protect the community. In addition to rolling back the right to pretrial bail, such pretrial detention severely handicaps preparation of an effective defense.

Under property-confiscation provisions, the government can seize the property of a suspected narcotics-law violator even before the suspect is convicted. It appears that a bit of sidestep occurs here because in civil legal processes the plaintiff has only to present "a preponderance of the evidence"--a much lighter burden of proof than the "beyond a reasonable doubt" required in criminal law. Further, standards of proof in civil forfeiture cases are even lower than in other civil cases; the government must demonstrate only "probable cause." In some cases, Weir points out, the government has seized property without first holding a hearing or even warning the property-owner.

Completely innocent people can easily be victimized by these provisions. Peter Katel ("Florida: Getting Caught in the Middle," Newsweek, April 13, 1990) reports that a Florida couple retired and sold their business property and moved to a retirement community on the monthly mortgage payments they received from the sale. Four years later, the buyer was indicted on drug charges, and federal authorities seized the business property as part of the assets of the alleged trafficker. The property was tied up in civil forfeiture proceedings, and the buyer, now facing criminal charges, stopped making payments. The sellers foreclosed and repurchased their property at the foreclosure sale. However, they discovered that the government's claim came first--and until all civil and criminal charges were settled (which will probably take years), the property will be held by Uncle Sam.

The seizure provisions can be a significant source of income for law enforcement agencies. Local agencies are allowed to keep a large portion of seizure proceeds, which can come from real property, autos, boats, stock portfolios, cash--anything asserted to be derived from drug profits. This golden carrot is considered a way for arresting authorities to optimize their seizure opportunities. Further, 80% of those having property confiscated in 1991 were never even charged with a crime.

In an apparent violation of the spirit of the Fifth Amendment, in 1991, the Justice Department began reviewing the files of people who had served prison sentences in state drug cases. Such people can be charged again, this time in federal courts, and sent to prison again for the same crime. For example, a Florida man, Mr. Clark, served a year in state prison in the mid-1980s for growing marijuana plants on his farm. In 1991 federal authorities uncovered a marijuana ring in the same area and decided that Mr. Clark had shared agronomy information with the ring. Later that year a federal judge sentenced Mr. Clark to life without parole in a federal prison. The formal charge was conspiracy, but the second charge was based on what was found in the 1985 warrant. Clark is being punished, separately, twice for the plants he grew in the mid-1980's. Technically, however, Mr. Clark's is not a case of double jeopardy because he was sentenced by two different sovereign governments (state and federal).


The Eighth Amendment

Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Daryl Gates, Los Angeles' former police chief, would have casual drug users taken out and shot, while William J. Bennett, Reagan's former drug czar, would have drug sellers' heads cut off (Joseph D. McNamara, "The War on Drugs is Lost," National Review, Feb. 12, 1996).

In 1993 two respected federal judges, Whitman Knapp and Jack B. Weinstein, announced that, as a protest to federal sentencing guidelines, they would no longer preside over drug cases. Fifty others, out of 680 federal judges, were already refusing. (Senior federal judges are allowed to choose what kind of cases they hear in their courts.) A few judges have even resigned rather than impose what they view as overly harsh sentences.

Mandatory sentencing guidelines severely limit a judge's discretion. The Anti-Drug Abuse Act of 1986 provided for the first time a mandatory minimum sentence for conviction in federal courts; it requires prison sentences for low-level carriers or for high-volume dealers. In 1988, amendments included life without parole for selling/conspiracy to sell five or more kilos of cocaine, one kilo of heroin, and for those with two or more drug convictions. Further, if a prosecutor is dissatisfied with the severity of a sentence, he can appeal; until 1984 this was a right only of the defendant. It is little wonder that prisons all across the country are overcrowded, in itself a cruel and unusual punishment.

One of the most serious secondary problems of mandatory sentencing is that individuals can enter jail simple, casual users--perhaps even first-time users-and emerge prepared to commit a large variety of violent crimes. They can meet experienced drug users who know the best ways to make a buy and the best people with whom one can fence stolen goods-shoplifters, burglars, con artists, contract killers. They can learn the best techniques for stealing cars, where to get an illegal gun, etc.

The Ninth Amendment

Amendment 9. The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.
According to a series of Supreme Court decisions, the right to privacy is one of the unexpressed rights of the people. Invasions of privacy by the government is considered one of the vilest characteristics of life in a dictatorship; they bring to mind scenes from Hitler's Germany. Nevertheless, the War on Drugs has encroached on this right in many ways, including the following:

·The Federal Drug Enforcement Agency maintains a computer bank (the Narcotics and Dangerous Drug Information System) containing the names of more than 1.5 million people. Posted in federal buildings are 1-800 numbers that one can use to report any person one suspects of illegal drug activity. The caller is not required to give his name or to present evidence or to appear in court--but the reported name goes into the computer system, even though more than 95% are not even under investigation.

·In several states, hospitals must submit for prosecution any drug-positive urine tests of pregnant women, even though urine tests have a reputation for unreliability. One positive urine test has ruined many budding careers, and now parents can purchase an over-the-counter urine test kit for determining drug activity of their children. Children may also be forced to be tested at school, and some private schools state proudly that they require repeated urine tests.

·Helicopters are permitted to fly low (100 feet) and to spy randomly into people's homes in efforts to catch possible drug use.

·Some critically and terminally ill patients are denied the use of many controlled substances, such as cocaine, heroin, and marijuana, that have valuable therapeutic applications.

·Entire families of drug defendants can be evicted from or denied public housing. Drug offenders are ineligible for some college loan programs.

·Finally, add to the list of concerns the right of self-determination and to ingest substances if one chooses to do so.

It is never a simple thing to turn present public policy around-even when the various interests select a mutually accepted new direction. However, change we must. We must stop accepting the erosion of our civil liberties because this is "what it takes to get the drug dealers." The war on drugs is failing. More and more social scientists, judges, and law enforcement officers are indicting our current narcotic policies as ineffective, counterproductive, and harmful--a position directly contrary to the positions of Congress and of the President.

Eric Sevaried observed that "The chief cause of problems is solutions." More of our civil rights will be quietly sabotaged, and more repression will occur until we are willing to attribute the suffering to the War on Drugs and the narcotics laws (and their consequences) themselves, rather than the actual drugs (and their use/abuse).

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