A Society of Suspects: The War on Drugs and Civil Liberties - Increasing Retribution

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Written by Steven Wisotsky, Cato Institute

Increasing Retribution

These are some of the many ways that the War on Drugs has cut deeply -- and threatens to cut deeper still -- into our privacy, eroding what Justice Louis D. Brandeis described as "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."^[137] Working hand-in-hand with the political branches, the courts have diminished constitutional restraints on the exercise of law enforcement power. In addition to expanded powers of surveillance, investigation, and prosecution, punishment has been loosed with a vengeance, against enemy and bystander alike.

Excessive punishments: Excessive and mandatory prison terms. Punishments have become draconian in part because of permission conferred by Justice Rehnquist's circular dictum: "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed."^[138] The statutory penalties have become so extreme, especially since the 1987 enactment of the Uniform Sentencing Guidelines,^[139] that many federal judges, required by law to impose them on real human beings, have begun to recoil. U.S. district court Judge J. Lawrence Irving of San Diego, a Reagan appointee, announced his resignation in protest over the excessive mandatory penalties he was required to mete out to low-level offenders, most of them poor young minorities. Complaining of "unconscionable" sentences, the judge said that "Congress has dehumanized the sentencing process. I can't in good conscience sit on the bench and mete out sentences that are unfair."^[140]

In another case, U.S. district court Judge William W. Schwarzer cried as he sentenced a first offender to 10 years in prison for his role in driving an acquaintance to a crack deal involving over 100 grams. The judge called the sentence "a grave miscarriage of justice" and criticized the laws that "make judges clerks, or . . . computers automatically imposing sentences without regard to what is just and right."^[141]

Judge Harold Greene of the District of Columbia went so far as to refuse to impose the minimum guideline sentence of 17.5 years on a defendant convicted of the street sale of a single Dilaudid tablet, pointing to the "enormous disparity" between the crime and the penalty. In the judge's view, the minimum was "cruel and unusual" and "barbaric."^[142] Fourth circuit Judge William W. Wilkins objected to mandatory penalties because "they do not permit consideration of an offender's possibly limited peripheral role in the offense."^[143] Agreeing with that thinking, the judicial conferences of the District of Columbia, Second, Third, Seventh, Eighth, Ninth, and Tenth circuits have adopted resolutions opposing mandatory minimums.^[144]

Excessive punishments: Punishing drug users without trial. As drug control policymakers came to realize that drug dealers were, in an economic sense, merely entrepreneurs responding to market opportunities, they learned that attacks on dealers and their supplies could never succeed as long as there was demand for the products. Thus, they would have to focus on consumers as well as on suppliers. President Reagan's 1986 Executive Order encouraging or requiring widespread urine testing marked a step in that direction. By 1988 administration policy was being conducted under the rubric of "zero tolerance." In that spirit, Attorney General Edwin Meese sent a memorandum to all U.S. Attorneys on March 30, 1988, encouraging the selective prosecution of "middle and upper class users" in order to "send the message that there is no such thing as 'recreational' drug use. . . ."^[145]

Because of the volume of more serious trafficking cases, however, it was not remotely realistic, as the Attorney General must have known, to implement such a policy. Indeed, in the offices of many U.S. Attorneys, there were minimum weight or money-volume standards for prosecution, and the possession and small-sale drug cases were routinely shunted off to state authorities. In fact, in many districts the crush of drug cases, which rose from 3,130 in 1980 to 12,592 in 1990,^[146] was so great that the adjudication of ordinary civil cases had virtually ceased. The courthouse doors were all but closed to civil litigants.^[147]

In the name of zero tolerance, however, Congress purposely began enacting legislation that did not have to meet the constitutional standard of proof beyond a reasonable doubt in criminal proceedings. In 1988 Congress enacted a system of "civil" fines of up to $10,000, imposed administratively under the authority of the attorney general,^[148] without the necessity of a trial, although the individual may request an administrative hearing.^[149] To soften the blow to due process, judicial review of an adverse administrative finding is permitted, but the individual bears the burden of retaining counsel and paying court filing fees.^[150] For those unable to finance a court challenge, this system will amount to punishment without trial.

Punishment without trial is a new and rather imaginative use of the law. It has been augmented by a provision in the Anti-Drug Abuse Act of 1988 that may suspend for one year an offender's federal benefits, contracts, grants, student loans, mortgage guarantees, and licenses upon conviction for a first offense of possession.^[151]

Both sanctions are a form of legal piling on. The legislative intent is to punish the minor offender more severely than is authorized by the criminal law alone. Thus, the maximum penalty under federal criminal law for a first offense of simple possession of a controlled substance is one year in prison and a $5,000 fine, with a minimum fine of $1,000.^[152] Fines up to $10,000 plus loss of federal benefits quite obviously exceed what Congress thought was fit and proper punishment for the underlying offense itself.

The most recent innovation of this kind is a form of greenmail, a law that cuts off highway funds to states that do not suspend the driver's licenses of those convicted of possession of illegal drugs.^[153] The potential loss of work for those so punished and the adverse consequences on their families are not considered. The suspension is mandatory.

Excessive punishments: Punishing the innocent. The War on Drugs not only punishes drug users, it also penalizes those who are innocent and those who are on the periphery of wrongdoing. The most notable example is the widespread and accelerating practice, federal and state, of seizing and forfeiting cars, planes, boats, houses, money, or property of any other kind carrying even minute amounts of illegal drugs, used to facilitate a transaction in drugs, or representing the proceeds of drugs. Forfeiture is authorized, and enforced, without regard to the personal guilt of the owner. It matters not whether a person is tried and acquitted; the owner need not even be arrested. The property is nonetheless forfeitable because of a centuries-old legal fiction that says the property itself is "guilty."^[154]

Relying on that legal fiction, the federal government in March 1988 initiated highly publicized zero tolerance seizures of property. Such seizures included the following:

• On April 30, 1988, the Coast Guard boarded and seized the motor yacht Ark Royal, valued at $2.5 million, because 10 marijuana seeds and two stems were found on board. Public criticism prompted a return of the boat, but not before payment of $1,600 in fines and fees by the owner;^[155]
• The 52-foot Mindy was impounded for a week because cocaine dust in a rolled up dollar bill was found on board;^[156]
• The $80 million oceanographic research vessel Atlantis II was seized in San Diego when the Coast Guard found 0.01 ounce of marijuana in a crewman's shaving kit. The vessel was eventually returned;^[157]
• A Michigan couple returning from a Canadian vacation lost a 1987 Mercury Cougar when customs agents found two marijuana cigarettes in one of their pockets. No criminal charges were filed, but the car was kept by the government;^[158]
• In Key West, Florida, David Phelps, a shrimp fisherman, lost his 73-foot shrimper to the Coast Guard, which found three grams of cannabis seeds and stems on board. Under the law, the boat was forfeitable whether or not Phelps had any responsibility for the drugs.^[159]

Not surprisingly, cases like the foregoing generated a public backlash -- perhaps the only significant backlash since the War on Drugs was declared in 1982. That backlash pressured Congress into creating what is known as the "innocent owner defense" to such in rem forfeitures.^[160] But even that gesture of reasonableness is largely illusory.

First, the defense does not redress the gross imbalance between the value of property forfeited and the personal culpability of the owner. For example, a Vermont man was found guilty of growing six marijuana plants, for which he received a suspended sentence; but he and his family lost their 49-acre farm.^[161] Similarly, a New York man forfeited his $145,000 condominium because he sold cocaine to an informant for the total sum of $250.^[162] The law provides no limit to the value of property subject to forfeiture, even for very minor drug offenses.

Second, the innocent owner defense places the burden on the property claimant to demonstrate that he acted or failed to act without "knowledge, consent or willful blindness" of the drug activities of the offender.^[163] Thus, the federal government instituted forfeiture proceedings in the Delray Beach, Florida, area against "numerous properties" containing convenience stores or other businesses where drug transactions took place; the government claimed that the owners "made insufficient efforts to prevent drug dealings."^[164]

Placing the burden on the claimant imposes expense and inconvenience because the claimant must hire a lawyer to mount a challenge to the seizure. Moreover, many cases involve the family house or car, and it is often difficult to prove that one family member had no knowledge of or did not consent to the illegal activities of another. For example, a Florida court recently held that a claimant did not use reasonable care to prevent her husband from using her automobile in criminal activity and thus she was not entitled to the innocent owner defense.^[165] Thus, innocent people are not immune to this form of punishment.

Excessive punishments: Punishing families and children. A particularly cruel application of this kind of vicarious responsibility for the wrongs of another is seen in the government's policy of evicting impoverished families from public housing because of the drug activities of one unruly child.^[166] The Anti-Drug Abuse Act of 1988 specifically states that a tenant's lease is a forfeitable property interest and that public housing agencies have the authority to hire investigators to determine whether drug laws are being broken. The act authorizes eviction if a tenant, a member of his household, a guest, or other person under his control is engaged in drug-related activity on or near public housing premises.^[167]

To carry out these provisions, the act funded a pilot enforcement program. And in 1990 the Departments of Justice and Housing and Urban Development announced a Public Housing Asset Forfeiture Demonstration Project in 23 states.^[168] The project pursued lease forfeitures and generated quite a bit of publicity.

In passing this law, it must have been obvious to Congress that many innocent family members would suffer along with the guilty. Perhaps it was thought decent nonetheless, as a way of protecting other families from drugs in public housing projects. As experience proves, however, even evicted dealers continue to deal in and around the projects. It is hard to take public housing lease forfeitures seriously, therefore, other than as a symbolic statement of the government's tough stand against illegal drugs.

The symbolic value of such evictions should be weighed against the destruction of family units: eviction often means that the parent(s) will lose custody of small children because they are thereby made homeless. Without provision for shelter, child protection services will often be compelled to declare the children dependent and place them in a state or foster home in the "best interests" of the children. These effects are unnoticed or ignored by lawmakers.

Destructive consequences: Damage to public health. A policy that destroys families, takes property from the innocent, makes suspects of us all, and, more generally, tramples the basic criminal law principles of personal responsibility, proportionality, and fairness is not easily contained. It has spillover effects into other public policy domains.

One area in which the fanaticism of the drug warriors is perhaps most evident is public health. Drugs such as marijuana and heroin have well-known medical uses. Yet, so zealous are the antidrug forces that even these therapeutic uses have been effectively banned.

Marijuana, for example, has many applications as a safe and effective therapeutic agent.^[169] Among them are relief of the intraocular pressure caused by glaucoma and relief of the nausea caused by chemotherapy.^[170] Some AIDS patients have also obtained relief from using cannabis.^[171]

But marijuana is classified, politically, by the attorney general of the United States, not the surgeon general, as a Schedule I drug -- one having a high potential for abuse, no currently accepted medical use, and lack of accepted safety for use. It is thereby deemed beyond the scope of legitimate medical practice and is thus not generally available to medical practitioners. However, a Harvard University survey found that almost half of 1,035 oncologists said they would prescribe marijuana if it were legal.^[172]

The only exception was an extremely limited program of compassionate treatment of the terminally or seriously ill. But even that program has been eliminated for political reasons. Assistant Secretary James O. Mason of the Department of Health and Human Services announced in 1991 that the Public Health Service's provision of marijuana to patients seriously ill with AIDS would be discontinued because it would create a public perception that "this stuff can't be so bad."^[173] After a review caused by protests from AIDS activists, the Public Health Service decided in March 1992 to stop supplying marijuana to any patients save the 13 then receiving it.^[174]

There are also beneficial uses for heroin. Terminal cancer patients suffering from intractable pain generally obtain quicker analgesic relief from heroin than from morphine. Many doctors believe that heroin should be an option in the pharmacopeia. Accordingly, in 1981 the American Medical Association House of Delegates adopted a resolution stating that "the management of pain relief in terminal cancer patients should be a medical decision and should take priority over concerns about drug dependence."^[175] Various bills to accomplish that goal were introduced in the 96th, 97th, and 98th Congresses. The Compassionate Pain Relief Act was brought to the House floor for a vote on September 19, 1984, but was defeated by 355 to 55. Although there were some concerns voiced about thefts from hospital pharmacies, the overwhelming concern was political and symbolic -- a heroin legalization bill could not be passed in an election year and would, in any event, send the public the "wrong message."^[176]

The final and perhaps most outrageous example in this catalog of wrongs against public health is the nearly universal American refusal to permit established addicts to exchange used needles for sterile ones in order to prevent AIDS transmission from intravenous drug users to other drug users. Needle exchange is prohibited by law in most jurisdictions. In 1991, however, the National Commission on AIDS recommended the removal of legal barriers to the purchase and possession of intravenous drug injection equipment. The commission found that 32 percent of all adult and adolescent AIDS cases were related to intravenous drug use and that 70 percent of mother-to-child AIDS infections resulted from intravenous drug use by the mother or her sexual partner. Moreover, the commission found no evidence that denial of access to sterile needles reduced drug abuse but concluded that it did encourage the sharing of contaminated needles and the spread of the AIDS virus.^[177] Notwithstanding the commission's criticism of the government's "myopic criminal justice approach" to the drug problem, the prevailing view is that needle exchange programs encourage drug abuse by sending the wrong message.

Destructive consequences: Loss of public safety. Public safety is sacrificed when nationwide over 18,000 local, sheriff's, and state police officers, in addition to thousands of federal agents, are devoted full time to special drug units.^[178] As a result, countless hours and dollars are diverted from detecting and preventing more serious violent crimes. Thirty percent of an estimated 1.1 million drug-related arrests made during 1990 were marijuana offenses.^[179] Of that 30 percent, nearly four out of five marijuana arrests were for mere possession.^[180] Tax dollars would be better spent if the resources it took to make approximately 264,000 arrests for possession of marijuana were dedicated to protecting the general public from violent crime.

The intensive pursuit of drug offenders has generated an enormous population of convicts who are held in prison for very long periods of time as a result of excessive and/or mandatory prison terms. It is widely estimated that the operating cost [without amortizing the capital outlay] of maintaining a prisoner ranges from $20,000 to $40,000 per year, depending upon the location and level of security at a particular prison. With over 800,000 men and women in American prisons today,^[181] the nationwide cost approaches $30 billion per year.^[182] This is a major diversion of scarce resources.

But these financial burdens are only part of the costs incurred as a result of the relentless drive to achieve higher and higher body counts. More frightening and more damaging are the injuries and losses caused by the early release of violent criminals owing to prison overcrowding. Commonly, court orders impose population caps on prisons, so prison authorities accelerate release of violent felons serving nonmandatory prison terms in order to free up beds for nonviolent drug offenders serving mandatory, nonparolable terms.

This crowding-out effect is well documented.^[183] To stay abreast of its rapidly growing prison population, for example, Florida launched one of the nation's most ambitious early release programs. But prisoners serving mandatory terms -- most of them drug offenders, who now comprise 36 percent of the total prison population -- are ineligible. As a result, the average length of sentence declined dramatically for violent offenders while it rose for drug offenders.^[184] In concrete terms, murderers, robbers, and rapists often serve less real time than a "cocaine mule" carrying a kilo on a bus from, say, Miami to Baltimore, who gets a mandatory 15-year term and serves about 8 years.

What follows from this? Recidivism, of course. A Department of Justice survey showed that 43 percent of state felons on probation were rearrested for a felony within three years of sentencing;^[185] parolees are, presumably, no better. In short, violent criminals are released early to commit more crimes of violence so that their beds can be occupied by nonviolent drug criminals, who are often first offenders. Civil libertarians are not often heard defending a societal right to be secure from violent criminals, much less a right of victims to see just punishment meted out to offenders. In this they are as shortsighted as their law-and-order counterparts. The War on Drugs is a public safety disaster, making victims of us all.

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