Is the Bill of Rights a Casualty of the War on Drugs?
Eric E. Sterling, President,
The Criminal Justice Policy Foundation
1899 L Street, N.W., Suite 500
Washington, D.C. 20036
Remarks prepared for delivery to the COLORADO BAR ASSOCIATION
92nd Annual Convention Aspen, Colorado September 14, 1990
Good afternoon. I'm going to talk to you this afternoon about
the "war on drugs" and its effects on the Bill of Rights.
There isn't any question that drug abuse is one of our nation's
most serious public health problems. In some instances, drug
abuse can cause birth defects in babies, mental retardation and
learning disabilities in children, mental illness in teenagers
and adults, as well as death and suicide. Addiction to tobacco
causes at least 300,000 deaths a year and billions of dollars
of economic losses. Abuse of alcohol causes some 100,000 deaths
per year, and thousands more crippling injuries.
The criminal traffic in drugs usually involves violence and
murder, bribery, and tax evasion. Many drug addicts commit theft,
fraud, burglary or robbery to get the money to buy expensive
drugs. There is a tiny criminal traffic in alcohol, and crime
committed to buy alcohol, in contrast to crime committed under
the influence, is not great. Obviously, drug abuse and drug trafficking
are very serious problems.
This afternoon I'm going to be critical of our war-like approach
to the drug problem. But that doesn't mean that I think drugs
are good. I don't. I don't think we can win the "war on
drugs," but that doesn't mean we can't be a lot more effective
in dealing with the drug problem. Basically, we have to manage
the drug problemthat is, the distribution has to be regulated
and policed and subject to the forces of law and order.
The war on drugs is a war on all of us. Who is the enemy in
the war on drugs? It is not the drugs because the drugs are mere
chemicals. We have a war on drugs no more than we have a war
on carbon dioxide.
In the eyes of the government, the obvious enemy is everyone
who uses illegal drugs, and everyone who gives them aid and
comfort. Of course, the obvious enemy includes everyone who buys
drugs, who sells drugs, who transports drugs, who grows marijuana.
But there are hidden enemies. The hidden enemy is every person
not actively working to purge drug users from our society. The
hidden enemies include the employers of people who may use drugs
if the employer fails to adopt steps to root out drug users --
even if employees are competent and perform well.
The hidden enemy is every parent of a drug user who fails to
turn their child over to the police or fails to use every means
to coerce their child into stopping his or her drug use.
The hidden enemy is every lawyer who represents a person accused
of violating the drug law.
The hidden enemy is everyone who makes or exhibits a motion
picture that makes jokes about drug use. The hidden enemy is every
merchant who sells cigarette rolling papers. The enemy hidden
is every radio station that plays rock 'n' roll from the 1960s
The hidden enemy is our next door neighbor, our bowling buddy
or golfing partner, our mail carrier, our secretary, our spouse.
We are the government's hidden enemy.
When you have a hidden enemy, you need to use extremely powerful
weapons. As in Vietnam, when you can't find the hidden enemy,
sometimes weapons are used that injure the innocent. A foundation
of our system of justice is that it is to protect the innocent.
That foundation has been filled by the termites of the war on
This afternoon let's examine the weapons being used by the government
against its enemies in the war on drugs and examine the casualty
It is my thesis that among the most tragic casualties in the
"war on drugs" are our constitutional liberties. To
start, let's go through the Bill of Rights in the Constitution
one-by-one to see how they have been affected by the war on drugs.
The First Amendment: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press..."
"What does the First Amendment have to do with drugs?"
I want to bring two examples to your attention: the first is
the decision of the United States Supreme Court, Employment
Division of Oregon v. Smith (494 U.S. 872, 110 S.Ct. 1595, 1990).
In that case two Native Americans were discharged from employment
in the drug treatment program for which they worked because they
used peyote as part of their participation in the religious practices
of the Native American Church. Peyote is the sacrament in that
church. They applied for unemployment benefits after they were
fired, and the State of Oregon turned them down. The Oregon
Supreme Court, however, found that as participants in the Native
American Church they had a right to use peyote, and said they
were entitled to benefits.
But the Oregon Attorney General, Dave Frohnmeyer, Republican
candidate for Governor, saw the case differently. In his view,
the war on drugs can not tolerate drug use. If a drug treatment
program demands a "drug-free" staff, Native Americans
who worship with their sacrament ought to be fired. And an appropriate
government weapon in the war on drugs is to deny such people
Notwithstanding well settled Supreme Court precedents that denial
of these benefits impermissibly restricts the free exercise of
religion, Attorney General/gubernatorial candidate Frohnmeyer
appealed to the U.S. Supreme Court.
It is important to stress that peyote is the sacrament in the
Native American Churchit is used by over 250,000 Native
American worshippers. They don't consider it a drug anymore than
Catholics think of communion wine as a drug, or as a refreshing
The Supreme Court, 5 to 4, reversed the Oregon Supreme Court,
and in the process threw out the long-standing doctrine that
a State's burden upon the free exercise of religion can only
be justified by a State "compelling interest" that
cannot be served by less restrictive means (Sherbert v. Verner,
374 U.S. 398, 406 (1963), Cantwell v. Connecticut, 310 U.S. 296
(1940)). Consider the background: the respondents were never
prosecuted by Oregon for their use of peyote. There is no evidence
that anyone has ever been harmed by the religious use of peyote.
23 States and the Federal government exempt the religious use
of peyote from the Controlled Substances Act. Indians who use
peyote as part of the Native American Church are less likely
to abuse drugs or be alcoholic than those who do not.
Here is a case where use of a religious sacrament, because it
has been classified by law enforcement authorities as a drug,
but nevertheless an essential component of the way in which people
worship and have worshipped for hundreds of years, became the
basis for denying unemployment benefits. From the perspective
of the international, multi-billion dollar war on drugs, this
case was totally insignificant. Unlike crack or heroin, the use
of peyote is not destroying people, their families, or cities
like New York, or nations like Colombia.
Most importantly, this case was a purely a symbolic battlefield
in the war on drugs. Yet this totally insignificant drug case
became the occasion for restricting the religious freedom of
all Americans by narrowing the applicability of the Free Exercise
clause. Justice Blackmun wrote ironically in his dissent, "One
hopes that the Court is aware of the consequences, and that its
result is not a product of overreaction to the serious problems
the country's drug crisis has generated." (Dissenting Slip
Opinion at 2.)
Justice Blackmun put his finger on the problem: this trashing
of the Free Exercise of Religion was purely an overreaction to
the drug problem, and the Bill of Rights was a casualty. As we
will see, this result is hardly new.
Let's look at another way in which the First Amendment is being
undermined by the war on drugsin this instance, the freedom
of the press. This summer, a magazine about drugs and the drug
cultureHigh Timesis being investigated by the U.S. Attorney
in Louisiana for aiding and abetting the illegal cultivation
of marijuana. The magazine prints a column called "Ask Ed"
that gives tips on improving marijuana cultivation. High Times
is also being investigated for printing advertisements for "grow
lights," irrigation equipment that can be used for growing,
among other plants, marijuana, and an advertisement for "The
Seed Bank", a business in the Netherlands that would mail
seeds for growing marijuana.
This investigation is not an obscenity case. This is not an
investigation of an "incitement to imminent lawless action"
under Brandenburg v. Ohio (395 U.S. 444 (1969)). This is an old-
fashioned threat of prosecution for seditious writing. This harks
back to the dark days of the 1918 Sedition Act and the prosecution
of filmmaker Robert Goldstein, sentenced to 10 years in prison
for his unbecoming portrayal of the British (then U.S. wartime
allies) in a film about the American Revolution, and the conviction
of Eugene Debs for criticizing Teddy Roosevelt's support of World
Once again, in the charged atmosphere of war, the fundamental
freedom of press is endangered.
The second amendment says, "A well regulated militia, being
necessary to the security of a free state, the right of the people
to keep and bear Arms, shall not be infringed." Gun control
advocates argue that this amendment does not guarantee an individual
right. (Quilici v. Village of Morton Grove, 695 F.2d 261 (7th
Cir. 1982), cert. denied, 464 U.S. 863 (1983), and U.S. v. Miller,
307 U.S. 174 (1939).) However, having been responsible for Federal
gun control legislation between 1981 and 1989, I have read many
of the law review articles on the origins and meaning of the
Second Amendment (See e.g. Stephen P. Halbrook, Ph.D., J.D.,
THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT
(University of New Mexico Press 1984); To Keep and Bear Their
Private Arms: The Adoption of the Second Amendment, 1787 - 1791,
10 Northern Kentucky Law Review 13-39 (1982) reprinted in 131
CONG. REC., 99th Cong., 1st Sess., S9105- 9111, July 9, 1985);
The Right to Bear Arms in the First State Bills of Rights, 10
VERMONT LAW REVIEW 255-320 (1985)). I think there is an individual
right to keep and bear some arms. There are scores of millions
of Americans who possess a .22 rifle for target practice, a handgun
for personal or family protection, or a shotgun for hunting.
Perhaps there are a few such Americans in this room today. I
think that such firearms possession is protected by the Second
But the extremism of the war on drugs manages to infringe on
that right. If, after surgery let's say, you use your wife's
Valium or your husband's pain medication, and the prescription
was not issued to you, you are an unlawful user of drugs. If
you also happen to be exercising your Second Amendment rights
and possess a firearm in your closet or gun cabinet, your possession
of the firearm makes you, at that moment, a Federal felon subject
to a ten-year sentence and a quarter million dollar fine (18
U.S.C. 922(g) and 924(a)(2)). This penalty also applies to the
millions of American gun owners who use marijuana, even those
who live in states for which the penalty for possessing marijuana
is a minor civil offense as it is here in Colorado. If you receive
a shotgun for Christmas and accept it, having twice been convicted
of possession of marijuana or another drug, you are subject to
a mandatory five years in prison (18 U.S.C. 924(c) and 21 U.S.C.
The politically manufactured fear (See Kaplan, MARIJUANA
THE NEW PROHIBITION, (1970) 91-146, and materials cited therein.)
of the blood-thirsty maniac killer of "Reefer Madness,"
led Congress to prohibit any person who was addicted to or used
illegal drugs from receiving a firearm. The blunderbuss weapon
of an overbroad law was created. Thus, millions of Americans,
whose illegal use of drugs is a minor or technical violation,
are felons and potential casualties because of their exercise
of Second Amendment right to posses firearms.
Incidentally, common sense is also a casualty in the war on
drugs. Prison is one place we don't want convicts to have firearms.
In 1984, a ten year prison term was established for possessing
or bringing a firearm or bomb into a Federal prison. In 1988,
Senator Phil Gramm of Texas insisted that the penalty for bringing
heroin, cocaine or LSD into prison be raised from 3 years to
20 years. Now possession of drugs in prison is twice as serious
as possessing a firearm or a bomb, rocket or grenade. When the
stupidity of this amendment was pointed out, the Senator's counsel
insisted that it was Gramm's contribution to the 1988 Anti-Drug
Abuse Act and it had to be in the bill. (18 U.S.C. 1791(b)(1);
P.L. 100-690, sec. 6468(a), (b)).
The Third Amendment prohibits in time of peace the quartering
of soldiers in any house. You recall, of course, that in the
18th century the King of England quartered soldiers in homes
to keep an eye on the unruly, disloyal colonists. About all the
King had were soldiershe had few other officials to police
the behavior of citizens. Police as we know them today were not
invented until the 19th century. Well, today government mandated
urine testing is the contemporary equivalent of quartering troops
in homes. The disloyal person who smokes marijuana in his home
Saturday night while watching a home video, who is urine tested
by government order on Tuesday, suffers the same degrading, invasive
surveillance as if the King's soldier were sitting there in the
living room monitoring the citizen's private activity.
Now the government uses infra red cameras in military satellites
designed to find the hot engines of enemy vehicles moving at
night to look over houses in America to find those that show
up as excessively warm. This evidence is used for obtaining records
of electricity use to see if someone might be growing something
indoors that he or she shouldn't be. Now instead of merely stationing
soldiers in homes, the war on drugs uses "Buck Rogers"
weaponsthe technology of 21st century warfareto look
right through the ceiling into our homes. The privacy from military
surveillance embodied in the third amendment is another casualty.
The Fourth Amendment states that "The right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated."
Then the amendment spells out the procedure for issuing warrants.
Every member of this audience who practices criminal law knows
that every interpretation of this amendment that ever extended
the "right of the people to be secure" has been reversed
in the 18 years since President Richard Nixon declared war on
drugs. From the first days of the war on drugs, new exceptions
to the warrant requirements, to the probable cause requirements,
to the particularity requirements, have been createdand almost
all of these have been in drug cases. Those of you who do not
practice criminal law, who studied criminal procedure in law
school ten or fifteen years ago would be shocked. Lead cases
you knew such as Aguilar v. Texas (378 U.S. 108 (1964)), and
Spinelli v. U.S. (393 U.S. 410 (1969)), are gone, overruled in
drug cases, rationalized by the exigencies of the war on drugs.
(See e.g. Wisotsky, Exposing the War on Cocaine: The Futility
and Destructiveness of Prohibition, 1983 WISCONSIN LAW REVIEW
The Fourth Amendment has been so watered down that the search
of a person for evidence of drug usewithout any evidence
of drug use, without any individualized suspicionis, in the
words of Justice Scalia, "a kind of immolation of privacy
and human dignity in symbolic opposition to drug use." (National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct.
By this time, you must be wondering if the Bar Association turned
this program over to some radicals who cooked up the inflammatory
title, "Is the Bill of Rights a casualty of the war on drugs?"
Well, a fairly conservative newspaper, USA Today, on November
15, 1989 entitled its lead, cover story "The War on Drugs-
-Are Our Rights on the Line?" On the cover was a photograph
of the Broward County, Florida Sheriff manufacturing crack cocaine
to sell in stings of drug buyers. The subheadline is "Some
Worry Police Out of Control." The story begins, "As
the war on drugs intensifies, there is growing concern that the
battle is claiming an unintended victim, our Constitutional rights.
Emboldened by recent Supreme Court rulings, police across the
U.S.A. are adopting aggressive tactics including neighborhood
sweeps, no- knock searches, reverse stings and property seizures.
'I've lived through a lot of crime crises but we've never gone
out of control like this,' says University of Michigan law professor
Yale Kamisar, an expert on police searches."
"In Detroit, police raided a food market in a drug neighborhood,
held the owner and seized his profits after dogs sniffed cocaine
on three one dollar bills in his cash register. Quoting Denver
Federal Judge Richard Matsch, a Nixon appointee, 'I wonder where
the United States is headed. My concern is that the real victim
of the war on drugs might be the Constitutional rights of the
The Fourth Amendment, in its requirement that warrants "particularly
describe" the place to be searched and the objects of the
search requires that the information that sustains a search be
recent, Rugendorf v. U.S. (376 U.S. 528 (1964)), Sgro v. U.S.
(287 U.S. 206 (1932)). If an informant tells a police officer,
"You know, it seems to me that last winter I remember that
Joe had some marijuana on the table in his living room,"
it is not permissible to rely on that information as the basis
for a search today to find marijuana.
Now consider a case reported in USA Today (Nov. 15, 1989, p.A1),
from Hudson, New Hampshire. At 5:00 a.m., August 3, 1989, police
came to the home of Bruce Lavoie, 34, a machinist with a wife
and three children. Without announcing themselves and without
evidence that Lavoie might be armed, police smashed the door
with a battering ram. Police had a search warrant based in part
on an informant's tip that was 20 months old. "As he rose
from his bed, apparently resisting the intruders, Mr. Lavoie
was fatally shot as his son watched. A single marijuana cigarette
The casualties are not just abstractions, they have children,
now orphans, who will never feel their father's hugs again, all
innocent victims of the war on drugs. Incidentally, pickets later
defending the police use of deadly force carried signs reading,
"Druggies have no rights."
The Fifth Amendment sets forth many rights and procedures including
the prohibition against depriving any person of "life, liberty
or, property, without due process of law." In the 1986 Anti-Drug
Abuse Act, Congress created a scheme of mandatory sentences in
drug cases (which I played a major part in drafting). Two levels
of mandatory sentences were set forth for transactions in quantities
of drugs greater than certain threshold quantities which was
intended to give U.S. Attorneys the direction to focus on the
highest level traffickers, and not waste time on the small fry.
Unfortunately the enacted thresholds, as watered down by the
Senate and in conference, are no longer based on the realities
of the drug marketplace. They were adopted without consideration
of their effect in sentencing real defendants, without consideration
of the effect on prison populations, and without study of their
potential effectiveness in deterring drug trafficking or drug
use. (House Report 99-845, pp. 11-12, pp. 16-17; P.L.99-570,
sec. 1002, 21 U.S.C. 841(b)(1)(A) and (B), Oct. 27, 1986).
Now those mandatory penalties are used to coerce plea bargains.
They give prosecutors the power to say, "Here's your choice:
I can charge you with this offense which carries a mandatory
sentence. If you go to trial and you lose, you will get a mandatory
10 years without parole up to life imprisonment for a first offense
(21 U.S.C. 841(b)(1)(A). (Congress specifically prohibited parole
in these kinds of cases.) Alternatively, if you plead guilty
to this lesser included offense which only carries a maximum
of 20 years, cooperate with us by becoming an informant for us,
we'll recommend a lower sentence in the guidelines such as five
years or something like that (21 U.S.C. 841(b)(1)(C)."
Very simply, faced with that kind of choice, a guilty pleas
is coerced, and the fifth amendment protection against denial
of due process of law is lost.
Let's think of another example of the erosion of the fifth amendment
protection. Due process in criminal cases includes the presumption
of innocence, In re Winship (397 U.S. 358, 90 S.Ct. 1068 (1970)).
However, in drug cases, Congress granted to the government the
power to seize the property of suspects in advance of trial.
Indeed, in advance of indictment (21 U.S.C. 853(e)).
Another way in which due process is denied and the accused are
unable to get a fair trial in some drug cases is by means of
the "megatrial." Under the continuing criminal enterprise
section of the Controlled Substances Act (21 U.S.C. 848) and
RICO, the Racketeer Influenced and Corrupt Organizations Statute
(18 U.S.C. 1961), there are monstrous trials, in which a score
of defendants are tried together in dozens of counts of indictments
alleging hundreds of different acts. Former Chief Judge Jack
Weinstein of the Eastern District of New York in his opinion
in U.S. v. Gallo spelled out how putting many defendants together
in a "megatrial" undermines the presumption of innocence
(National Law Journal, Dec. 7, 1988 at 13). If the government
accuses twenty Italian-American men with being members of an
organized crime family and requires them to sit together at the
same table in a courtroom for half a year and presents a continuous
stream of testimony about conversations between and about Italian
surnamed citizens, what jury isn't going to believe that they
are all members of the "Mafia?" Even when the evidence
only applies to a few defendants, the innocent defendants are
the victims of "spillover prejudice."
Another megatrial, the "Pizza Connection" heroin trial
(U.S. v. Badalamenti) in New York, lasted over 17 months. There
were something like 21 defendants. The name of one defendant
was not mentioned in the evidence or testimony until six months
had elapsed. How does someone defend oneself in a megatrial?
How can a jury process evidence in a complex trial that takes
17 months and sort the truth from the lies in dozens of counts?
How can due process of law be said to exist in that situation?
Yet these abuses are being tolerated in the prosecution of the
war on drugs. The casualties include thousands of accused (including
some who are innocent) with good defenses, who rightly feared
that the risk of conviction coupled with mandatory penalties
made a negotiated guilty plea look more attractive.
The Sixth Amendment, among many specific rights, guarantees
that "the accused shall enjoy the right ... to have the assistance
of counsel for his defence." Yet even such a fundamental
right is under attack by the government and the courts in the
course of the war on drugs. In U.S. v. Morrison (449 U.S. 361
(1981)), Drug Enforcement Administration special agents knowingly
met with the defendant, without counsel being present, to denigrate
counsel's ability and threaten conviction, thus invading and
undermining the lawyer-client relationship. Yet the Supreme Court
said a sixth amendment violation could not be established without
a "showing of prejudice" to the outcome (in effect
requiring the defendant to lose)thus weakening the protection
of an individual's right to counsel.
Congress has also joined the assault on the right to counsel.
It gave prosecutors the power to seize the fees of the attorneys
who represent the accused in drug cases. Justice Blackmun in
describing this law said "Had it been Congress' express
aim to undermine the adversary system as we know it, it could
hardly have found a better engine of destruction than attorney's-fee
forfeiture." Caplin & Drysdale, Chartered v. U.S. (dissenting
opinion, 109 S.Ct. 2667, 2674 (1989)).
In order to seize those fees, the government has begun to issue
subpoenas to defense attorneys about their fees. This forces
the defense attorney to become a witness in the government's
forfeiture case, and forces the attorney to withdraw as counsel.
This has been found to give the government the ability to eliminate
highly competent counsel from trying certain cases.
Another frightening example is that the government is demanding
and attempting to force attorneys to provide it with evidence
against their clients in circumstances rationalized by the war
on drugs, but which involve all types of cases.
This is the background: under the Currency and Foreign Transaction
Reporting Act of 1970 (also known as the Bank Secrecy Act, 31
U.S.C. 5311 et seq.), if you went to a bank and made a $10,000
or larger cash transaction, the bank had to report that transaction
to the Treasury Department. But if you bought a large ticket
item like a car and paid cash, that did not have to be reported
to Treasury. Now the Internal Revenue Code of 1986 (26 U.S.C.
6050I) requires all such cash transactions to be reported to
IRS. It enables the government to get intelligence about people
who buy a Mercedes-Benz with $55,000 in cash. Then the government
specifically applied this reporting requirement to criminal defense
lawyers. The special tax return under this section requires
extensive detailing of who the customer is and the nature of the
transaction. Look at how this works for lawyers and their prospective
Let's assume that you believe that you may be under surveillance
or investigation by the government. You keep hearing mysterious
clicks on your telephone, and you think you are being followed.
You go to a famous criminal defense attorney for advice and possible
representation, and she wants $10,000, by no means an unheard
of fee. You borrow a few thousands dollars from three or four
close friends and relatives, you pawn your stereo, and pay the
attorney the $10,000 in cash you've collected. The attorney
however sends the required form to the Internal Revenue Service
about you. You haven't been indicted. You don't even know if
you're being investigated. Your attorney sends government investigators
a form saying, "My name is Mary Smith, famous criminal defense
lawyer. I've just been retained by Mr. Jones, who paid me $10,000
in cash to represent him."
Does anybody doubt that lights and bells will go off at the
IRS when that report comes in? Of course they will. If there is
no investigation pending on Mr. Jones, IRS or another Federal
agency will put an agent on him right away. The Anti-Drug Abuse
Act of 1988 (sec. 7601(b)) created a major exception to the usual
rule of confidentiality of income tax information to permit the
return filed under 26 U.S.C. 6050I to be turned over to any Federal
law enforcement agency (26 U.S.C. 6103(i)(8)). How can the traditional
protection of counsel of choice and the right to have counsel
continue to exist if counsel are put in the position of becoming
informants against their own clients?
The Washington Post reported on November 15, 1989, that nine
hundred letters had been sent to criminal defense lawyers around
the country by IRS saying, "We want more information about
your clients." Quite justifiably, criminal defense lawyers
are in an uproarbut so should everyone who values the Sixth
Amendment right to counsel.
The war on drugs has also become the pretext for an assault
on the criminal defense bar itself. Sentencing of Federal defendants
is pursuant to guidelines promulgated by the U.S. Sentencing
Commission, but a judge may impose a sentence lower than the
stated guidelines by stating the reasons. However, a court can
impose a sentence below a statutory mandatory minimum sentence
(which Congress has created almost exclusively for drug cases)
only upon the motion of the prosecutor that the defendant provided
"substantial assistance in the investigation or prosecution
of another person who has committed an offense." (18 U.S.C.
Consider the temptation upon the defendant awaiting sentence
in such a drug case to find somebody, anybody, who they can inform
against, in order to induce the prosecutor to move for a sentence
reduction below the mandatory 5, 10 or 20 years. In fact, many
defendants are secretly encouraged by the government to attempt
to incriminate their own defense counsel.
The Seventh Amendment guarantees that "In suits at common
law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved." If you think
about it a second, this right is essential for protecting other
rights. If you want to bring a Federal civil rights case, for
example, you have a right to a jury trial under the Seventh Amendment.
If you are the victim of an environmental hazard, or product
liability, or any kind of case in which you have been harmed,
you have a guaranteed opportunity to sue.
The Sixth Amendment guarantees that criminal trials must be
"speedy," consequently they have priority over almost
every other matter. Recently a Federal Magistrate in Los Angeles
told me that in the United States District Court for the Central
District of California, the volume of drug cases is so great
the judges are concerned that soon they will be unable to try
any civil cases. The number of attorneys in the U.S. Attorney's
criminal division has just been doubled which promises a new
influx of drug cases, but few new judgeships are being created.
The Supreme Court of Vermont declared a six month moratorium
on all civil jury trials. (Administrative Directive #17, "Temporary
Postponement of Civil Jury Trials." January Term, 1990.
Signed by all 5 justices on January 11, 1990, effective January
22, 1990. All civil jury trials for which jurors have not been
drawn are postponed until after July 1, 1990. The moratorium
was amended on March 28, 1990 when it appeared that the legislature
would appropriate additional funds.) Many other federal and State
courts are in a similar bind.
How can your right to a civil jury trialany kind of civil
litigationbe maintained if the docket is jammed with drug
cases? Obviously, that right is lost.
The Eighth Amendment guarantees that "Excessive bail shall
not be required,...nor cruel and unusual punishments inflicted."
In 1984, in the Comprehensive Bail Reform Act, the Congress
said that in most felonious drug cases (see 21 U.S.C. 841(b)),
there is a rebuttable presumption that defendants are dangerous
to the community and can be held without bail (18 U.S.C. 3142(e)).
Those provisions are being used throughout the federal court
system to detain accused persons before trial. This undermines
their ability to work on their defense, to assist their counsel
and to obtain a fair trial.
Regarding the prohibition against cruel and unusual punishment:
The Supreme Court has struck down, as cruel and unusual punishment,
the death penalty for crimes that do not involve an intent to
kill (Coker v. Georgia, (433 U.S. 584, 1977, rape); Enmund v.
Florida (458 U.S. 782, 1982, co-defendant in a robbery and murder);
Cabana v. Bullock, (474 U.S. 376, 1986, instructions to jury
require finding an intent to commit murder).; cf. Tison v. Arizona
(481 U.S. 137, 1987).
However, on June 28, 1990 the Senate, by a 66 to 32 vote, adopted
the D'Amato amendment to S. 1970 providing for the death penalty
for a person convicted of any drug violation committed as part
of a large scale continuing criminal enterprise (21 U.S.C. 848(b)
and (c)(1) (involving for example 30,000 kilograms of marijuana,
or only 1.5 kilograms of cocaine base, 300 grams of LSD, 30 kilograms
of heroin, etc.), even where no homicide has been committed.
While these are significant quantities, by no means are they
earth-shaking quantities. And considering the purity of the drug
is not considered, a mid-level operative may be chargeable with
a capital offense. When it comes to fighting the war on drugs,
the Senate is prepared to inflict punishments the Supreme Court
has held are cruel and unusual. Only the presence of controversial
amendments to ban semi-automatic assault weapons and a provision
in the House crime bill to allow the introduction of evidence
of racial disparity in the imposition of the death penalty, combined
with the exhaustion of Congress in the October 1990 budget deadlock,
resulted in the elimination of these death penalty provisions
in the enacted legislation (S.3266).
Unless the political climate is forced to change, it is only
a matter of time before the death penalty for these types of
offenses will be imposed. (N.B., In 1994 Congress did enact
these death penalties where no killing was involved. ("Federal
Death Penalty Act of 1994 which was enacted as title VI of the
"Violent Crime Control and Law Enforcement Act of 1994,"
P.L. 103-322, Sept. 13, 1994 (known popularly as the 1994 Crime
Bill), sec. 60002, 18 U.S.C. 3591(b)(1)).
(Parenthetically, the U.S. Supreme Court heard oral argument
on November 5, 1990 in Harmelin v. Michigan (No. 89-7272), on
the question of whether the Michigan law requiring a sentence
of mandatory life in prison without possibility of parole for
the simple possession of more than 650 grams of cocaine constitutes
cruel and unusual punishment. The only other offenses in Michigan
which carry the same sentence are first degree murder, as well
as possession of cocaine with intent to deliver, and distribution
of cocaine. N.B. In 1991, the U.S. Supreme Court upheld the conviction,
Harmelin v. Michigan, 501 U.S. 957 (1991) in a five to four
decision. The court was actually even more divided. The opinion
by Justice Scalia upholding the constitutionality of the sentence
had the support of one other justice. The other opinion, by
Justice Kennedy, upholding the sentence had the support of two
other justices. Kennedy emphasized "the pernicious effects
of the drug epidemic" (501 U.S. 103). A dissenting opinion
by Justice White was joined by three other justices. See Volume
40, number 2, Villanova Law Review, "Symposium--The Sentencing
Controversy: Punishment and Policy in the War Against Drugs,
p. 301-427 (1995), in particular, "Sentencing Drug Offenders:
The Incarceration Addiction" by Hon. Margaret P. Spencer,
40 Vill. L.Rev. 335-381, and "The Sentencing Boomerang:
Drug Prohibition Politics and Reform" by Eric E. Sterling
40 Vill. L.Rev. 383-427.)
Let me skip the Ninth and Tenth Amendments for a moment. The
Thirteenth Amendment prohibits slavery and involuntary servitude,
and the Fourteenth Amendment, guarantees equal protection of
the laws. Those amendments have been read to prohibit government
behavior which continues the badges of slaverythe treatment
of African American citizens as second class citizens (See City
of Memphis v. Greene, 451 U.S. 100, 126 (1981). When the police
get the license to crack down on suspects as part of the war
on drugs, in what communities do they stop people without any
cause whatsoever? In what communities do the drag nets take place?
You know the answer. Overwhelmingly, it is in minority communities.
The Los Angeles Times ("Blacks Feel Brunt of Drug War",
April 22, 1990, p.1) has shown that this is the case throughout
Consider the National High School Senior Survey of the National
Institute on Drug Abuse shows white youth use drugs at higher
rates than black youth. However, the U.S. Office of Juvenile
Justice and Delinquency Prevention reported that minority youth
detained for drug offenses increased by 71 percent between 1983
and 1985. The rate of detention of white youth was stable. This
is typical of how the burden of enforcement of the drug laws
is inflicted on Blacks, Hispanics and Native Americans. Even
though many more pregnant white women use cocaine than pregnant
Black women, 80% of all of the arrests of women for endangering
their fetus or delivering cocaine to their fetus are of Black
The spirit of the 13th and 14th Amendments is violated everyday
because the police are carrying out the war on drugs much more
heavy handedly in communities of color. Equal protection of the
law is being denied.
Returning to the Bill of Rights. The Ninth Amendment provides
that "The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained by
the people." What are those other rights? Those are every
other right. (See _The Rights Retained by The People: The History
and Meaning of the Ninth Amendment_, Edited by Randy E. Barnett,
George Mason University Press, (1989)).
Now, when we think about rights, let's ask, "where do rights
come from?" Do our rights come from Constitutional amendments?
Are those our only rights? Or does the existence of our rights
precede the First Amendment? Wasn't it the Declaration of Independence
said that "we hold these truths to be self evident"
that we are "endowed by our Creator with certain unalienable
Those rights don't flow from Congress. Uncle Sam doesn't give
us our rights. We had our rights before the government was created.
Consider the right to vote. The Fifteenth and Nineteenth Amendments
to the Constitution say that the right to vote shall not be abridged
on account of race or on account of sex. Did those rights come
into existence because white males suddenly thought it would
be a neat idea to give those rights to the rest of us? Did those
rights come into existence because Congress finally decided to
vote for them? No. Those rights always existed. They were not
recognized by the society. But those rights were always there.
Was it Black Americans or women that changed in 1870 or 1920?
No, society changedit recognized that a right which existed,
the exercise of which was being denied, must now be guaranteed.
Society's recognition of our rights is slow, it evolves.
I argue that there is a right to use drugs. Last night a few
of you drank alcohola drug. Today, a few of you have used
nicotine, a drug. We don't urine test people to prevent them
from using nicotine. We don't lock up the nicotine dealers. Most
of us have had caffeine today, a very powerful central nervous
system stimulant. We drink it in very carefully measured dosages,
usually in common six ounce ceramic cups or ubiquitous styrofoam
cups. Coffee cups are drug paraphernalia. A wine glass, a beer
bottle, they are drug paraphernalia. An ashtray is drug paraphernalia.
We use drugs in our society legally and illegally to an enormous
Why are the drug laws violated by tens of millions of our fellow
citizens? Because they intuitively know that they have a right
to engage in conduct that gives them pleasurable sensations even
though it is prohibitedthat those laws are unjust.
Many of us in this audience, probably a majority, recognize
a woman's right to control her reproductive freedom, to control
her reproductive tissues, to control her womb. How is the right
of all us to control our brains any less? Don't we have a right
to control our cerebral tissue?
To say that exercise of personal control over something so intrinsically
personal as one's brain and central nervous system is not a right
reserved under the Ninth Amendment means that the Ninth Amendment
is almost meaningless.
The Tenth Amendment says that "the powers not delegated
to the United States by the Constitution, nor prohibited by it
to the States are reserved to the States respectively, or to
The powers not delegated to the United States by the Constitution
are reserved to the people. Where is the power in Article I,
Section 8 of the Constitution that allows Congress to say, "We
declare that your brain is off limits to you. You cannot use
those cells in your brain that opium can affect, or that marijuana
stimulates. Your brain is not really yours to control. The space
between your earsthat's not really yours to control. We're
the Congress. That's our space. You are prohibited from using
your brain in unapproved ways." Is this a power that the
Congress has? If so, where did it get it and when?
Let's think about the First amendment broadly for a moment,
and think about the policy that underlies the First Amendment.
Ultimately, the First amendment is designed to guarantee our
right to make up our minds. ("Those who won our independence
believed that the final end of the State was to make men free
to develop their faculties . . . . They valued liberty both as
an end and as a means. They believed liberty to be the secret
of happiness and courage to be the secret of liberty. . . ."
Whitney v. California, 274 U.S. 357 (1927) (concurring opinion
of Justice Brandeis, joined by Justice Holmes, 274 U.S. at 375).
Brandeis defended the "freedom to think as you will and
to speak as you think" as "indispensable to the discovery
and spread of political truth. . .." (274 U.S. at 375).)
How do our minds work? As you hear me speaking or if you read
this, there are biochemical changes taking place in your brain.
That's what's happening. Your brain is changing chemically.
If you remember what I say or wrote, your brain has been permanently
In fact, what I'm saying is more dangerous than any drug you
can takemuch more dangerous. You might get angry at your
members of Congress for deliberately or carelessly embracing
a policy that systematically degrades your hard won freedoms
and liberties. You might protest or take action and challenge
the government. Even though what I'm saying is very dangerous
because it's affecting your brain, and affects your ability to
make up your mind about drug laws, what I'm saying is protected
by the First Amendment.
Do you have a right to listen or a right to read? Even though
the First Amendment doesn't explicitly say "the freedom
to listen shall not be abridged", isn't it obvious that
you have a right to listen. If so, in material terms you have
a right to chose to have your brain changed by what you want
to listen to or what you read.
Two centuries ago the King of England did not try to prevent
Americans from directly using their brains. He did what he could
do, which was to punish seditious speech and treasonous writings
things which profoundly influenced the minds of revolutionaries
through the chemical changes they caused in their brains.
Today, we know how the brain functions as a biological processor
of chemicals. But since Congress has by law acted to intervene
in your choice of brain-effecting chemicals, forbidding you from
choosing certain drugs that millions of Americans desire, we
must ask, "What is Congress' constitutional power for doing
this?" Congress' legislative powers are set forth in
Article I, Section 8 of the Constitution. The authority to ban
drugs is no longer based on the power to tax, as it was from
1914 until 1970. Congress now asserts its power to forbid the
use of drugs in the Controlled Substances Act (21 U.S.C 801;
titles II and III of the Comprehensive Drug Abuse Prevention
and Control Act of 1970, Public Law 91-513.) is based on it's
power to regulate interstate and foreign commerce. (United States
v. Scales, 464 F.2d 371,373 (6th Cir. 1972); United States v.
Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 1977), cert. denied,
435 U.S. 947 (1978).) Now what, pray tell, does that have to
do with your brain?
Congress recognized that if you grew marijuana in your backyard
for your own use, there would be a very strong claim that such
activities did not affect interstate or foreign commerce. Therefore
Congress asserted that "local distribution, and possession,
nonetheless have a substantial and direct effect upon interstate
commerce" and declared that it could not "feasibly
differentiate" or "distinguish" purely intrastate
activity with respect to drugs from the interstate or foreign
commerce in drugs. Therefore, it claimed jurisdiction over drugs
grown in your backyard, or always possessed by you in local,
intrastate commerce. (21 U.S.C. 801(3),(4),(5),(6)).
Now, is your brain interstate commerce? Is your bedroom interstate
Consider the implications of this expansion of the Congressional
power to regulate interstate commerce. Beginning in 1933, Congress
at the urging of President Franklin Delano Roosevelt asserted
an enormously expanded role in regulating interstate commerce.
Conservatives considered it an almost revolutionary expansion.
Only after a number of deaths and resignations, and the electoral
sweep of 1936 was this enormously expanded claim of Federal power
under the interstate commerce clause upheld by the Supreme Court
(NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)).
We therefore accepted the expansion of the power of Congress
to regulate interstate commerce to the maximum. Even if an individual's
act is trivial, that is irrelevant if it is a type of act, when
cumulated with other similar acts, might reasonably be deemed
by the Congress to have substantial national consequences. (See,
e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v.
McClung, 379 U.S. 294 (1964); Perez v. United States, 402 U.S.
There was also created the theory that Congress could enact
prohibitions to "protect" interstate commerce. The Fair
Labor Standards Act of 1938 excluded from interstate commerce
goods made in plants with did not meet Federal standards for
wages and hours of employees. (This was upheld in United States
v. Darby, 312 U.S. 100 (1941): "Congress, following its
own conception of public policy concerning the restrictions which
may appropriately be imposed on interstate commerce, is free
to exclude from [such] commerce articles whose use in the states
for which they are destined it may conceive to be injurious to
the public health, morals, or welfare..." (312 U.S. at 114).)
In the 1960's Congress used the interstate commerce power to
guarantee civil rights in interstate travel and accommodations.
(e.g. Heart of Atlanta Motel, Inc, v. United States, 379 U.S.
It is time to consider, where does interstate commerce end?
I'm standing here in this conference center, a facility of interstate
commerce. I'm carrying an airplane ticket to Washington. My pocket
is full of credit cards, tools of interstate commerce. However,
I spent the night here, I've had a beautiful hike, I've had a
couple of meals here. Am I actually here in Colorado, or am I
still in the limbo of interstate commerce? If I am still in interstate
commerce now, when do I leave interstate commerce? Can I ever
leave interstate commerce? (Notably, Justice Rehnquist suggested
that "it would be a mistake to conclude that Congress' power
to regulate pursuant to the Commerce Clause is unlimited. Some
activities may be so private or local in nature that they simply
may not be in commerce. Nor is it sufficient that the person
or activity reached have some nexus with interstate commerce."
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264 (1981) (concurring opinion at 310). Departing from
the post New Deal line of cases he concluded, the commerce power
"does not reach activity which merely 'affects' interstate
commerce. There must be a showing that a regulated activity has
a substantial effect on that commerce." 452 U.S. at 312.
(Bold in the original, underlining added.) So far, no other justices
have joined this argument.)
But if I am in interstate commerce, what about those of you
who have not left your home state to come to this conference.
Are you in interstate commerce?
If interstate commerce can constitutionally be claimed to be
the basis for anything that Congress wants to regulate, what
part of our lives is not regulatable by Congress? If Congress
can use this power this broadly in the regulation of our brains,
then the Federal government is omnipotent and the notion of constitutional
checks and balances is non-existent.
If our brain is regulatable as interstate commerce, then certainly
our wombs and genitals are too, aren't they, and our blood, our
heart, our lips, our fingers, our eyes, and our ears? Is there
any part of us that is not in interstate commerce?
I believe that at some point the tissues inside our skin must
be totally outside interstate commerce, or else Congress has
unlimited power to tell us to do whatever it wants us to do.
It is this, it seems to me, that is the most dangerous heart
of the war on drugs and which strips the Ninth and Tenth Amendments
of their meaning. Essentially the legal basis for the war on
drugs depends upon the assumption of total power by the Congress
and the Federal Government to regulate the most intimate aspects
of our lives, the very dreams that we have. And the propaganda
arm of the war on drugs has been successful persuading us to
unwittingly surrender this vital power over ourselves to the
Federal government. Indeed the propaganda of the urgency of the
war on drugs has been so successful, many of our fellow citizens
consciously believe we must surrender ourselves for the good
of the state.
Seen in this light, the war on drugs is the corner stone of
an as yet unbuilt edifice of totalitarianism.
Challenging the war on drugs is the most important issue facing
civil liberties and the preservation of the Bill of Rights.
You are lawyers. You know that aside from the questions of due
process and constitutionally required criminal procedure, the
criminal justice system is going down the tubes. The American
Bar Association issued a special report, Criminal Justice in
Crisis, which found the criminal justice system is being overwhelmed
with drug cases. (CRIMINAL JUSTICE IN CRISIS, American Bar Association,
Section on Criminal Justice, Special Committee on Criminal Justice
in a Free Society, 1988, p.6.) It functions as an assembly line.
No longer does individualized justice takes place. The attorneys
- - prosecutors, defense counsel, and judgesare mere mechanics
that keep the machine of arrest and imprisonment functioning.
I won't discuss today the many serious costs our society is
suffering from undertaking the prohibition approach to the problem
of drugsthe increased crime, the spread of disease, the
economic price of enriching organized crime by $100 billion per
year. I won't analyze our national drug control strategy to
explain how it cannot succeed in stopping the cultivation and
shipment of drugs into the United States. Someone who might be
indifferent to the hits taken by the Bill of Rights, should be
alarmed by the problems caused our nation by drug prohibition
because they effect everyonein their pocketbook, in their
personal safety, in the availability of quality health care.
The organized bar, such as the Colorado Bar Association, is
one of the institutions in the society that is sensitive to the
Bill of Rights implications of the war on drugs. Next year will
be the bicentennial of the ratification of the Bill of Rights.
Many bar associations are planning programs to commemorate
the Bill of Rights. Now is the time for bar associations to begin
to educate the public about the jeopardy our heritage of liberty
faces from the war on drugs. If the bar fails to do this, who
will do it? If no one does it, then surely the celebration of
the bicentennial of the Bill of Rights on December 15, 1991 will
be a hollow exercise.
It should be obvious that all of these comments do not deny
that drug abuse is not a terribly tragic situation. As is alcoholism.
As are 300,000 annual deaths from tobacco and cigarette addiction.
Those are terrible things too. But we are not going to solve
any of these problems by allowing the war on drugs to make our
Bill of Rights into a shattered remnant of the vital shield it
Eric E. Sterling, President,
The Criminal Justice Policy Foundation
1899 L Street, NW, Suite 500 Washington, DC 20036-3804
http://www.cjpf.org (The Criminal Justice Policy Foundation)
(National Drug Strategy Network)