|A Wiser Course: Ending Drug Prohibition
One of the more insidious effects of the "war on drugs" has been the gradual erosion of the rule of law and the public's civil liberties. Several interrelated elements contribute to this particularly destructive consequence of the current drug laws.
Politicians from the President of the United States to mayors running in local elections are importuned by the people for the assurance that increasing crime and the criminal element be contained in our society. Our country, with the highest rate of drug abuse of any industrial country in the world, also has the largest budget in the world to enforce its laws prohibiting drugs. Despite huge increases in the federal government's budget for the "war on drugs," the so-called "drug problem" with all of its ramifications has not significantly abated. The public's perception of its political leaders' ineffectiveness in alleviating drug-related violence adds to the general atmosphere of lawlessness and breeds cynicism and disrespect for the law.
Instead of progress since the first federal anti-drug law was passed in 1914, nearly 80 years of drug prohibition have yielded few inroads against the sale or use of drugs. This, understandably, suggests to the public that the law itself is an ineffectual tool for dealing with the issue.
The large sums of money appropriated for law-enforcement create enormous, self-perpetuating bureaucratic agencies, such as the United States Drug Enforcement Agency ("DEA"), which fight for independence and scarce public resources while making little headway against the "drug problem." These agencies have ample motivation to exaggerate or distort the extent and danger of "drug abuse" so as to justify (and thereby insure) their continued existence. Being inherently biased, they have great potential to ignore the public's true welfare.
The fact that drug prohibition breeds corruption has been known for decades. Every day there are news stories of law enforcement officers being arrested for their involvement with drug dealers. The sums of money involved in the drug business are too great and too inviting for the law enforcers not to seek their share. Corrupt police behavior creates a further disillusioned public. In addition, just as organized crime became entrenched during Prohibition, the current prohibitionist regime is currently subsidizing the mafia and other organized crime groups because of the highly inflated prices on the black market.
There is no reason to believe that recognized market forces cease to apply where the drug business is concerned. There is public recognition that youths and unemployed adults often cannot just say "no" to drugs when saying "yes" as a dealer or a dealer's helper is much more profitable than are the alternatives. Children living in poor, urban neighborhoods are particularly susceptible to being drawn into illegal drug-related activities by visions of status and easy money. Laws against drugs thus discourage many youths and adults from productive legitimate employment that would benefit society.
Criminal prosecutions for violations of the federal and state drug laws appear to be disproportionately directed against minorities. Understandably, there is widespread public concern that the drug laws are selectively enforced with vigor against the poor and disenfranchised, while rich and middle class drug users are permitted to indulge without serious fear of legal consequences.
The pursuit of a "drug-free" society has resulted in a panoply of intrusions into the lives of United States citizens:
The Bill of Rights is in danger of becoming meaningless in cases involving drugs. Tenants charged with no crime are evicted from homes where police believe drugs are being sold. Public housing projects are sealed for house-to-house inspections. The Supreme Court has permitted warrantless searches of automobiles, the use of anonymous tips and drug-courier profiles as the basis for police searches, and the seizure of lawyers' fees in drug cases. Property on which marijuana plants are found can be forfeited even if the owner is charged with no crime. Prosecutors have been allowed to try the same person at the state and federal levels for the same drug-related crime. .
A few examples will illustrate the erosion in individual civil liberties occasioned by the "war on drugs." In 1991, the United States Supreme Court in Florida v. Bostick, upheld the constitutionality of a police tactic of boarding long-distance buses and asking permission to search passengers' baggage, overruling the Florida Supreme Court's ruling that such an encounter with the police is so inherently coercive that no consent given for such a search could be truly voluntary. The Florida v. Bostick decision was merely one of a number of rulings since the early 1980s which authorized police stops and questioning of airline, train, and bus passengers without the level of suspicion generally required for Fourth Amendment search and seizure purposes.
The search for tell-tale evidence of drug use has even descended to the level of compelling federal employees to give urine samples for analysis, without regard to whether such a privacy intrusion is related to job performance. The public---led by the government---appears to be willing to jump on the bandwagon "to restrict civil liberties, and even accept warrantless searches of homes and cars, in order to reduce the use of illicit drugs."
Forfeiture has become one of the most publicized and controversial weapons in the government's anti-drug arsenal. Any assumption, however, that the law would be deployed only against "drug kingpins" and major players has proved unwarranted as small time dealers and marginal users are more often targeted:
Under Zero Tolerance, which targets casual drug users, the government has seized thousands of cars, boats, and homes because occupants or guests allegedly carried drugs. In 1990, seizures exceeded $527 million, and they are expected to exceed $700 million in 1991. The U.S. Marshalls Services now has a $1.4 billion inventory of seized assets including more than 30,000 homes, cars, businesses and other property. .
In the fiscal year 1993, "the DEA made 14,430 domestic seizures of nondrug property, valued at approximately $669 million." Moreover, forfeitures have become a popular way to generate additional revenue.
The in rem nature of a civil forfeiture proceeding, replete with its many procedural pitfalls, rests on the legal fiction that the property itself is guilty of wrongdoing. The uneven burdens of proof assigned the parties reveals the imbalance in the system. To prevail, the government need only have reasonable grounds to believe the property is subject to forfeiture. It falls to the claimant to prove by a preponderance of the evidence the negative proposition that the property was "innocent."
As a result of the over-zealous application of the forfeiture statutes, the judiciary has attempted to curb some of the more visible excesses. For instance, absent exigent circumstances, pre-hearing seizures of homes, where the tenants were either evicted outright or were permitted to stay at the sufferance of the United States Marshall, are no longer tolerated. And the forfeiture of real property is now expressly subject to the limitations of Eighth Amendment proportionality analysis.
A claimant's ability to defend against a forfeiture has long been compromised by the maze of rules allowing for the freezing of assets, which alone often discourages private counsel from taking on a case. Too often, the failure to secure experienced counsel results in the loss of the property.
Finally, with news accounts of law enforcement personnel driving around in expensive cars seized during drug operations, reports of police helicopters with sophisticated detection equipment hovering over homes, and the intrusive subpoenaing of records from bona fide businesses (such as those offering hydroponic gardening equipment), it is clear that forfeiture laws require an overhaul.
Although the Ninth Amendment guarantees that "[t]he enumeration in the Constitution of rights shall not be construed to deny or disparage others retained by the people," our society has struggled to find a balance between individual liberty and privacy and governmental intrusion. Although the United States Supreme Court has recognized certain activities as being beyond the reach of most state or federal governmental intrusion (e.g., birth control, abortion during the first trimester, and the possession of adult pornography in the home), drug use has never been found to be within the "right of privacy" that the Court has forged.
Because the law, as it stands today, does not recognize the right to use drugs, the "war on drugs" has become "in effect, if not in intention, a war on drug users." Year after year, state and federal laws that prohibit the possession of drugs, demonize and criminalize the users of drugs, estimated to be at least 20 million in the United States alone. Yet, "[d]rugs have been used to alter consciousness in most societies throughout history, and different drugs have been considered acceptable at different times and places." As Lester Grinspoon and James B. Bakalar have stated:
Of all the Prohibition era mistakes we are now repeating, the most serious is trying to free society of drugs by the use of force. There is no reason to believe that the inclination to ingest substances that alter consciousness can be eradicated. A drug-free society is an impossible and probably an undesirable dream.... Our present drug policies are immoral because they require a war of annihilation against a wrongly chosen enemy. We will never be able to regulate the use of consciousness-altering drugs effectively until our ends are changed along with the means that serve them..
Ending drug prohibition would enable the Court and our society to recognize the right of individuals to alter their consciousness (the most private of matters), so long as they do not harm the persons or property of others.
A Wiser Course: Ending Drug Prohibition
A Report of The Special Committee on Drugs and the Law
of the Association of the Bar of the City of New York
June 14, 1994
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