A Society of Suspects: The War on Drugs and Civil Liberties - Squelching Religious and Expressive Freedoms

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Written by Steven Wisotsky, Cato Institute

Squelching Religious and Expressive Freedoms

Religious liberty. For centuries, the Klamath Indians, a tribe living on the West Coast of the United States, have used peyote in their religious ceremonies, much as Roman Catholics use wine in theirs. But peyote is a controlled substance under federal law. A 66-year-old Klamath Indian, one Alfred Smith, was ordered by his employer not to participate in an upcoming weekend Native American Church ceremony because it included the ingestion of peyote. After participating in the ceremony, Smith informed his employer that he had indeed ingested the peyote. Smith was discharged that same day after refusing to enter an employee assistance program, saying that there was nothing wrong with him. After he was fired for failing to be drug-free, Oregon denied him unemployment compensation. Smith challenged the denial of unemployment benefits, and the Oregon Supreme Court ruled in his favor, declaring his religious practice ultimately to be protected by the free exercise clause of the First Amendment.^[186] The U.S. Supreme Court, restricting precedents favorable to Smith,^[187] reversed and upheld the denial of benefits.^[188]

Freedom of expression. A direct attack on critics of the War on Drugs is illustrated by a federal investigation of High Times, a monthly magazine devoted to legalization of marijuana and ridicule of the drug war.^[189] The magazine has been banned in Canada. But in the United States, where such overt suppression is presumably barred by the First Amendment,^[190] more oblique methods may achieve the same goal. As part of the investigation, federal agents subpoenaed the names, addresses, and phone numbers of every past and current employee. High Times advertisers, especially those who sell horticultural equipment that may also be used to cultivate marijuana, were raided in October 1989, pursuant to search warrant, and their business records were confiscated.^[191] The magazine's advertising revenues dropped substantially.

This type of attack has not been limited to High Times. Customers of horticultural mail order houses have also been brought under scrutiny.^[192] In one case, a man who grew orchids with equipment he had bought from a horticultural advertiser suffered a warrantless search of his home.^[193] Newspapers report that "federal drug agents are demanding that garden suppliers across the country turn over lists of their best customers."^[194]

Another example of the chilling effect of the War on Drugs is provided by the case of Judge Robert Sweet of the Southern District of New York, who was the first federal judge in the nation to reveal his opposition not just to harsh penalties but to the war itself.^[195] In thoughtful, well-reasoned speeches, Judge Sweet advocated the legalization of drugs in conjunction with a number of other important social reforms. For this advocacy, he was the victim of a judicial ethics complaint filed by the Washington Legal Foundation.^[196] Although he was not required to answer and the complaint was ultimately dismissed,^[197] press coverage of the complaint may lead other potential reformers without life tenure to remain silent, especially when career advancement is taken into account. The war's chilling effect on actual and potential reformers is thus very real.

Conclusion

However uncomfortable it may be to admit, the undeniable reality is that drugs always have been and always will be a presence in society. Although we should do what we can to prevent and minimize the harmful consequences of substance abuse, no friend of freedom can ignore the connection between choice about drug use and personal autonomy and privacy.^[198] Americans have been paying too high a price for the government's War on Drugs. As one federal judge has said, "It behooves us to think that it may profit us very little to win the war on drugs if in the process we lose our soul."^[199]

Notes

The author wishes to thank Nova Law students Nicole Ehart, Eben Self, Mary Szeluga, and Brian Hole for their help in editing this study.

[1] Milton Friedman, "Open Letter to Bill Bennett," The Wall Street Journal, September 7, 1989, p. 14.

[2] Ronald Reagan, "President's Radio Address to the Nation," (October 2, 1982), Weekly Compilation of Presidential Documents,Agency of Fear (New York: G. P. Putnam's Sons, 1977), p. 103. vol. 18, p. 1249. Reagan's War on Drugs is the most recent in a long line of wars on drugs. The original war was fought by U.S. Treasury agents in the decade following passage of the Harrison Narcotics Act of 1914, which brought cocaine and opiates under federal control for the first time. Edward Epstein,

A second war was organized around the Marihuana Tax Act of 1937, which Federal Bureau of Narcotics Commissioner Harry Anslinger told Congress was necessary to stop the "marihuana menace" exemplified by teenage gangs who became violent and murderous after smoking marijuana. Ibid., p. 33.

A third drug war was officially declared by President Richard Nixon. In a message to Congress, he portrayed drug abuse as a "national emergency," branding it "public enemy number one," and calling for a "total offensive." Ibid., p. 178.

[3] "We need, fully and completely, to marshal the nation's energy and intelligence in a true all-out war against drugs." Quoted in "Excerpts from News Session by Bush, Watkins and Bennett," New York Times, January 13, 1989, p. D16 (Statement by President Bush).

[4] "It is the declared policy of the United States Government to create a Drug-Free America by 1995." 21 U.S.C. sec. 1502(b) (1988).

[5] National Treasury Employees v. Von Raab, 489 U.S. 656, 683 (1989)(Scalia, J., dissenting).

[6] California v. Acevedo, 111 S. Ct. 1982, 2002 (1991)(Stevens, J., dissenting).

[7] Skinner v. Railway Labor Executive Association, 489 U.S. 602, 641 (1989) (Marshall, J., dissenting).

[8] United States v. Solivan, 937 F.2d 1146, 1153 (9th Cir. 1991).

[9] Cresswell v. Florida, 564 So. 2d 480, 484-85 (Fla. 1990) (Kogan, J., dissenting).

[10] Ira Mickenberg, "Criminal Rulings Granted the State Broad New Power," National Law Journal 13, no. 50 (August 19, 1991): 510. The summary also noted:

In the span of nine months, the court has authorized police to chase down citizens whom they have no reason to believe have committed a crime, permitted random interrogation and requests to search people who use public transportation, and specifically allowed state legislatures to establish harsh sentencing schemes that are grossly disproportionate to the crimes to which they are applied.

Ibid., p. 14.

[11] According to the National Narcotics Intelligence Con sumers Committee annual report for 1991, cocaine and heroin are readily available in U.S. cities. "Use of Heroin and Cocaine Increased, Says Intelligence Report," Drug Enforcement Report (New York: Pace Publications, August 10, 1992), p. 4. See also notes 58 and 59 below.

[12] John Powell and Ellen Hershenov, "Hostage to the Drug War: The National Purse, The Constitution and the Black Community," University of California at Davis Law Review 24 (1991): 557. About one-third of those arrests in 1989 were for marijuana offenses, and 80 percent of those (320,000) were for simple possession.

[13] According to the Bureau of Justice Statistics' National Judicial Reporting Program, of an estimated 667,366 persons convicted of a felony in state courts in 1988, 111,950 persons (17 percent) were convicted of drug trafficking. This figure is approximately 50 percent greater than the number convicted in 1986, the year the survey had last been conducted. And 17 percent of all convictions in 1988 were for felony drug possession.Drugs and Crime Data Center and Clearinghouse, Drugs and Crime Data (November 1991), p. 2.

At the state level, for example, Florida experienced a dramatic rise in the total number of drug incarcerations, from 2,013 in FY 1985 to 16,160 in FY 1990. This equals 36.3 percent of the total number of persons incarcerated for felonies. Robyn Blumner, "Drug Czar Appointment Promises More of the Same," The Drug Policy Letter (Washington: Drug Policy Foundation, January/February 1991), p. 4.

[14] Ted Gest, "The Prison Boom Bust," U.S. News & World Report, May 4, 1992, p. 28.

[15] The Sentencing Project, "Americans Behind Bars," reported in BNA Criminal Practice Manual, vol. 5 (January 23, 1991), p. 28.

[16] H. Jane Lehman, "Expanded War on Drugs May Threaten Landlords," Washington Post, November 17, 1990, p. E1; Michael Isikoff, "Drug Raids Net Much Valuable Property -- and Legal Uproar," Washington Post, April 1, 1991, p. A1.

[17] Keith Harrison, "Push Comes to Shove: Store Told to Report Drugs or Face Closing," Washington Post, March 23, 1991, p. C3.

[18] Quoted in Edward Walsh, "House Votes Antidrug Legislation," Washington Post, September 12, 1986, p. A1.

[19] "The Larry King Show," June 15, 1989 (Cable News Network broadcast), quoted in "Crackmire," The New Republic, September 11, 1989, p. 7.

[20] "Senate Votes Permission to Shoot Down Drug Planes," (LEXIS, NEXIS Library, United Press International file), August 1, 1989.

[21] H.R. 7112. Congressional Record, 97th Cong., 2d sess., 1982, 128: 7088.

[22] Larry Singleton had raped a teenager, hacked off her arms between wrist and elbow, and left her for dead in the desert. He was convicted and given the maximum sentence of 14 years. People v. Singleton, 169 Cal. Rptr. 333 (Cal. App. 3rd, 1980). He served 8 years.

Compare the 10-year mandatory term meted out to a 26-year-old mother and sole supporter of two small children for carrying a kilo of cocaine on an Amtrak train from Los Angeles to Kansas City for $1,000. News Briefs (Washington: National Drug Strategy Network, July 1991), p. 6.

[23] Cocaine gigolos can be of either sex. An example involves a woman who set up at least 40 men in South Florida. Her tactics included seducing an intended defendant and establishing a sexual relationship. After a few weeks of gentle pressure, she would arrange a drug deal between her reluctant boyfriend and drug enforcement agents. The boyfriend would be busted, and the woman would get paid. Magistrate Peter Nimkoff recorded his disapproval by recommending dismissal of cocaine charges against a defendant victimized by this technique. United States v. Eugenio Llamera, No. 84-167-Cr (S.D. Fla. 1984). See also Acosta v. State, 477 So. 2d 9 (Fla. 3d Dist. Ct. App. 1985).

[24] Larry Keller, "Sheriff's Office Makes Own Crack for Drug Stings," Fort Lauderdale News & Sun Sentinel, April 18, 1989, p. A1. In Kelly v. Florida, 593 So. 2d 1060 (Fla. Dist. Ct. App. 1992), the court held the manufacture of crack cocaine for police sting operations to be illegal.

[25] H.R. 5484. Congressional Record. 99th Cong., 2d sess., 1986, 132: 459.

[26] Warren Richey, "U.S. Plotted Invasion, Group Says," Fort Lauderdale News & Sun Sentinel, April 3, 1990, p. A3.

[27] The House Civil Service Subcommittee reported that about 0.5 percent of 24,559 applicants and 28,872 employees tested positive for drugs, mostly cannabis, in the period between March 1988 and March 1990. Sharon LaFraniere, "Court Upholds Drug Testing of Justice Department Applicants," Washington Post, March 30, 1991, p. A5.

[28] National Treasury Employees Union v. Von Raab, 489 U.S. 656, 680 (1989)(Scalia, J., dissenting).

[29] Steven Wisotsky, "Not Thinking Like a Lawyer: The Case of Drugs in the Courts," Notre Dame Journal of Law, Ethics & Public Policy 5 (1991): 671.

[30] Joseph Treater, "20 Years of War on Drugs, and No Victory," New York Times, June 14, 1992, sec. 4, p. 7.

[31] Cocaine use peaked in 1982 and stayed on a plateau through 1985 before turning sharply downward. National Institute of Drug Abuse (NIDA), National Household Survey, 1990. See note 61 below.

[32] The House Select Committee on Narcotics Abuse and Control had urged the president to declare war on drugs, H. Rept. No. 418, 97th Cong., 2d sess., 1982, pts. 1 and 2, p. 50. Twenty-eight Senators had banded together in the Drug Enforcement Caucus to "establish drug enforcement as a Senate priority." Charter of Senate Drug Enforcement Caucus, 1982.

[33] Approximately 3,000 parents groups had organized across the nation under the aegis of the National Federation of Parents for Drug Free Youth. Laurence Gonzalez, "The War on Drugs: A Special Report," Playboy, April 1982, p. 134. Pamphlets of Informed Parents of Dade put the number of such groups at nearly 6,000 in the 1985-86 period.

[34] See note 2 above.

[35] "President's Message Announcing Federal Initiatives Against Drug Trafficking and Organized Crime," (October 14, 1982), Weekly Compilation of Presidential Documents, vol. 18, pp. 1311, 1313-14. The president called for (and got): (1) more personnel -- 1,020 law enforcement agents for the Drug Enforcement Agency, Federal Bureau of Investigation, and other agencies, 200 assistant U.S. attorneys, and 340 clerical staff; (2) more aggressive law enforcement -- creating 12 regional prosecutorial task forces across the nation "to identify, investigate, and prosecute members of high-level drug trafficking enterprises;" (3) more money -- $127.5 million in additional funding and a substantial reallocation of the existing $702.8 million budget from prevention, treatment, and research programs to law enforcement programs; (4) more prison bed space -- the addition of 1,260 beds at 11 federal prisons to accommodate the increase in drug offenders to be incarcerated; (5) more stringent laws -- a "legislative offensive designed to win approval of reforms" with respect to bail, sentencing, criminal forfeiture, and the exclusionary rule; (6) better interagency coordination -- bringing together all federal law enforcement agencies in "a comprehensive attack on drug trafficking and organized crime" under a cabinet-level committee chaired by the attorney general; and (7) improved federal/state coordination, including federal assistance to state agencies by training their agents.

[36] These initiatives are reviewed in Steven Wisotsky, "Crackdown: The Emerging `Drug Exception' to the Bill of Rights," Hastings Law Journal 38 (1987): 889.

[37] 1984 National Strategy for Prevention of Drug Abuse and Drug Trafficking, p. 121. President Bush's budget request for FY 1993 was $12.7 billion. Office of National Drug Control Policy, 1992 National Drug Control Strategy Budget Summary, p. 3. (State expenditures on drug enforcement and imprisonments collectively exceed that amount.)

[38] Albernaz v. United States, 450 U.S. 333, 343 (1981).

[39] The Comprehensive Crime Control Act of 1984, for example, created a presumption in favor of pretrial detention for any person accused of a 10-year drug felony. 18 U.S.C. sec. 3142(g) (1988). See generally Wisotsky, "Crackdown."

[40] For example, 21 U.S.C. sec. 841(b)(1) (1988) provides a mandatory minimum term of 10 years to life for sale of 50 grams or more of crack on a first offense. 21 U.S.C. sec. 848(a) (1988) imposes a mandatory minimum sentence of 20 years to life upon a first conviction for continuing criminal enterprises (CCE), defined as a "series" of drug violations; and 21 U.S.C. sec. 848(b) (1988) imposes a mandatory life sentence upon conviction for CCE meeting certain minimum weights or dollar values. The death penalty can also be imposed for an intentional killing connected to such violations. 21 U.S.C. sec. 848(e)(1) (1988).

By comparison, Florida Statute 794.011(5)(1991) punishes "simple rape" by a maximum prison term of 15 years, and in practice, much less. Florida Statute 782.04(2)(1991) punishes second-degree murder with no mandatory minimum and a maximum of life in prison. Florida Statute 775.082(1) (1991) punishes first-degree murder, when the death sentence is not imposed, with a mandatory minimum penalty of 25 years in prison before becoming eligible for parole. Florida Statute 893.135(1)(b)(2)(1991) punishes trafficking in cocaine by life imprisonment "without possibility of parole."

[41] The Federalist Papers no. 78 (New York: C. Rossiter, ed., 1961) (A. Hamilton).

[42] United States v. Miranda, 442 F. Supp. 786, 795 (S.D. Fla. 1977).

[43] See generally Wisotsky, "Not Thinking Like a Lawyer."

[44] Burke v. Kansas State Osteopathic Association, Inc., 111 F.2d 250, 256 (10th Cir. 1940).

[45] Robinson v. California, 370 U.S. 660, 672 (1962).

[46] Compare Arnold Trebach, The Heroin Solution (New Haven, Conn.: Yale University Press, 1982), p. 104, summarizing the Brain Committee Report, a classic study by a distinguished group of British physicians, who, after "careful scrutiny of the histories of more than one hundred persons classified as addicts," concluded that "many of them who have been taking small and regular doses for years . . . are often leading reasonably satisfactory lives."

[47] Among the many classic studies are those conducted by or known as the National Commission on Marihuana and Drug Abuse; the Mayor's Committee on the Marihuana Problem in the City of New York; the Panama Canal Zone Military Investigations; the Indian Hemp Drugs Commission, Marijuana, 1893-94; Departmental Committee on Morphine and Heroin Addiction (Rolleston Report) (1926); Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs, Drug Addiction: Crime or Disease? (interim and final reports, 1961); Interdepartmental Committee, Drug Addiction (Brain I) (1961); Interdepartmental Committee, Drug Addiction (Brain II), (second report, 1965); Advisory Committee on Drug Dependence, Cannabis (Wooton Report)Non-Medical Use of Drugs (LeDain Report) (interim report, 1970). National Research Council of the National Academy of Sciences, An Analysis of Marijuana Policy (1982). (1968); Canadian Government's Commission of Inquiry,

[48] Terrebone v. Butler, 848 F.2d 500, 504 (5th Cir. 1988). The vampire language was quoted by the court in Young v. Miller, 883 F.2d 1276, 1283 (6th Cir. 1989), upholding mandatory sentence of life without parole for a first offender, the same punishment as for first-degree murder.

[49] Terrebone, 624 F.2d 1363, 1369 (5th Cir. 1980). (This is an earlier opinion in the same case cited in note 48 above.)

[50] Harmelin v. Michigan, 111 S. Ct. 2680, 2706 (1991).

[51] See Wisotsky, "Crackdown."

[52] United States v. Property Known as 6109 Grubb Road, 890 F.2d 659, 665 (3rd Cir. 1989) (Greenburg, J., dissenting). Justice Kennedy used substantially similar language to up hold the Customs Service's drug testing program in Von Raab, 489 U.S. 656, 674.

[53] Harmon v. Thornburgh, 878 F.2d 484, 497 (D.C. Cir. 1989)(Silberman, J., concurring in part and dissenting in part). Judge Silberman thought that the majority had unduly restricted the scope of the government's drug testing program while personally expressing "grave doubts that the criminal law is the most effective way of dealing with our drug problem. . . ." Ibid., note 1.

[54] United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992). The Court held that a Mexican citizen could be forcibly kidnapped from Mexico and made to stand trial in the United States because the bilateral extradition treaty was silent on the subject of kidnapping, even if it violated general principles of international law.

[55] United States v. de Hernandez, 473 U.S. 531 (1985).

[56] Harmelin v. Michigan, 111 S. Ct. 2680 (1991). See note 40 above.

[57] United States v. Verdugo-Urquidez, 856 F.2d 1214, 1218 (9th Cir. 1987). The caution went unheeded when the Supreme Court reversed the court of appeals in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

[58] In 1980 a kilo of cocaine cost $50,000-$55,000 delivered in Miami; by 1986 the price had fallen to the range of $12,000-$20,000, and it has hovered in that zone to the present day. In 1980-81, a typical gram of cocaine cost $100 and averaged 12 percent purity at street level. By 1986 the price had fallen to $80 ($50 in Miami), and the purity had risen to more than 50 percent. National Narcotics Intelligence Consumers Committee, The Supply of Illicit Drugs to the U.S. for Foreign and Domestic Sources. See also the National Drug Policy Board, Federal Drug Enforcement Progress Report 1986 (April 1986), p. 7.

By 1990 the amount of cocaine seized by federal author ities had risen to 101 metric tons (more than 200,000 pounds), with an additional amount estimated at between 263 and 443 tons escaping into the U.S. black market. Office of National Drug Control Policy study (1991), cited in Drug Enforcement Report, June 24, 1991, p. 5.

During 1991, federal agencies seized more than 134 tons of cocaine in the United States, according to the annual report of the National Narcotics Intelligence Consumers Committee. Cited in Drug Enforcement Report, August 10, 1992, p. 4.

[59] A National Institute on Drug Abuse household survey estimated that in 1991 there were 700,000 heroin users as compared to 471,000 in 1990. "Use of Heroin and Cocaine Increased, Says Intelligence Report," Drug Enforcement Report, August 10, 1992, p. 4.

An abundance of heroin -- cheap and potent enough to be smoked or snorted rather than injected -- has emerged in the nineties. Michael Isikoff, "Hospital Data Indicate Rise in Hard Core Drug Abuse," Washington Post, May 13, 1992, p. A1.

According to the Drug Enforcement Administration, the average purity of heroin available on the streets has quadrupled, from 6 percent to 24 percent, in the last five years. Increasing supplies of pure heroin have led traffickers to cut the street price of the drug, making it more available. Drug Enforcement Report, April 23, 1992, p. 6.

[60] The National Organization for the Reform of Marijuana Laws has for years estimated that marijuana is among the top three or four crops by dollar value in the United States. David Johnston, "Illegal Drug Sales in Nation Put at $40 Billion," New York Times, June 20, 1991, p. A20.

Domestic eradication programs by police and National Guard units have led clever growers to abandon open fields and forests in favor of virtually undetectable indoor locations such as warehouses and underground structures.

[61] Marijuana use peaked in 1979, three years before President Reagan declared the War on Drugs. Cocaine use peaked in 1982 and stayed level through 1985 before turning sharply downward.

The latest NIDA National Household Survey data, released in 1990, confirm the sharp decline in middle-class drug use: 27 million people had tried some illegal drug, down 25 percent from 1985. Monthly cocaine users dropped 45 percent to 1.6 million and monthly cannabis users dropped 12 percent to 10.2 million. Cocaine use blipped up in 1991 to 1.9 million users. "Use of Heroin and Cocaine Increased, Says Intelligence Report," Drug Enforcement Report, August 10, 1992, p. 4.

[62] "Cocaine-related hospital emergencies have increased in number for the third consecutive quarter, . . . bringing them to the same level as when President Bush took office vowing to end the 'scourge' of drug abuse." Isikoff, "Hospital Data." See also Sam Medlin, "Drug Users Choose Heroin More Often," USA Today, March 24, 1992, p. A3.

[63] See, for example, David Boaz, "The Consequences of Prohibition," in The Crisis in Drug Prohibition, ed. David Boaz (Washington: Cato Institute, 1990), p. 108; Kurt L. Schmoke, "A Problem of Health and Economics," in The Crisis in Drug Prohibition, pp. 10-11.

[64] In 1991 one-third of Washington, D.C.'s 489 homicides were estimated by police to be the work of youthful gangs of drug enforcers. Pierre Thomas and Michael York, "Enforcers Are D.C.'s Dealers of Death," Washington Post, May 18, 1992, p. A1.

[65] See Enrique Ghersi, "The Drug War and the Renaissance of Peruvian Militarism," paper delivered at the conference entitled "Liberty in the Americas: Free Trade and Beyond," Mexico City, May 19-22, 1992. The event was a hemisphere-wide conference cosponsored by the Cato Institute and the Centro de Investigaciones Sobre la Libre Empresa (CISLE), in cooperation with the Instituto Cultural Ludwig von Mises (ICUMI).

[66] See Ted Carpenter, "Coercion for Export: Washington's Hemispheric Drug War," paper delivered at the conference entitled "Liberty in the Americas: Free Trade and Beyond," Mexico City, May 19-22, 1992.

[67] Examples of corruption are too numerous to cite individually but are reviewed in Steven Wisotsky, Beyond the War on Drugs (Buffalo, N.Y.: Prometheus Books, 1990), p. 145.

[68] In a New York Times/CBS poll based on telephone interviews conducted September 6-8, 1989, 64 percent cited drugs as the most important problem facing the nation -- triple the percentage that had so responded in July 1989. Sixty-one percent favored drug testing of workers generally. Most respondents agreed that restrictions on individual rights were justified by the drug crisis. Richard Berke, "Poll Finds Most in U.S. Back Bush Strategy on Drugs," New York Times, September 12, 1989, p. B8.

[69] Richard Morin, "Many in Poll Say Bush Plan Is Not Stringent Enough," Washington Post, September 8, 1989, p. A1.

[70] An 11-year-old boy who told authorities he didn't want his mother hurt by "bad stuff" turned her and her boyfriend in for smoking marijuana and using cocaine. Associated Press, "Son Turns in Mom, Friend for Drug Use," Miami Herald (Gulf edition only), September 3, 1987, p. A20.

[71] Tom Fiedler and Richard Wallace, "Bush Vows War on Cocaine Trade," Miami Herald, April 28, 1989, p. A1.

[72] In a televised speech on September 5, 1989, the president announced the impending dispatch of military equipment to Colombia to support a less rhetorical war against the cocaine cartels of Medellin and Cali. Later diplomatic initiatives offered additional funds for eradication of coca and related law enforcement operations in Colombia, Peru, and Bolivia.

[73] Arnold S. Trebach, The Great Drug War (New York: Macmillan, 1987), p. 166.

[74] Donald Baker and John Harris, "Wilder Eyes Drug Tests on Campus," Washington Post, April 3, 1991, p. A1.

[75] Lauren Ina, "To Fight Crime, Official Would Suspend Rights," Washington Post, July 13, 1991, p. A6.

[76] An important example of a political tradition cast aside in the rush to make war on drugs is the Posse Comitatus Act, a post-Civil War law that keeps military forces out of civilian law enforcement except in cases of rebellion or insurrection. Beginning in 1981, the government breached that line of demarcation, bringing the military, especially the U.S. Navy, into an active support role in interdiction on the high seas. Wisotsky, "Crackdown," pp. 892-93.

[77] Financial Investigation of Drug Trafficking: Hearing Before the House Select Committee on Narcotics Abuse and Control,Wisconsin Law Review 6 (1983): 1386-88. 97th Cong., 1st sess., 1981, p. 58 (statement of Representative Hutto). The entire Congress apparently shared that perception, becoming a prolific source of antidrug initiatives. In just the first year of the 97th Congress, over 100 bills proposing to "reform" some aspect of the criminal justice system were filed; more than three-fourths specifically proposed harsher treatment for drug of fenses or drug offenders. A survey of those bills appears in Wisotsky, "Exposing The War on Cocaine: The Futility and Destructiveness of Prohibition,"

[78] Quoted in National Association of Criminal Defense Lawyers, Washington Digest, January 12, 1990.

[79] Ibid.

[80] Sentencing Practices and Alternatives in Narcotics Cases: Hearings Before the House Select Committee on Narcotics Abuse and Control, 97th Cong., 1st Sess., 1981, p. 3 (statement of Representative Beard [R.-Tenn.]).

[81] John Moody Bogota, "Colombia; Noble Battle, Terrible Toll," Time, December 18, 1989, p. 33.

[82] See note 58 above.

[83] See United States v. Ofshe, 817 F.2d 1508, 1516, n. 6 (11th Cir. 1987).

[84] Ibid., at 1511.

[85] Robert Kuntz, "When Lawyers Wear Wires, Where Can Clients Turn?" The Connecticut Law Tribune, August 12, 1991, p. 10.

[86] See Robert Kuntz, "When Lawyers Snitch," Miami Review, July 26, 1991, p. A1.

[87] News Briefs (Washington: National Drug Strategy Network April 1991), p. 6, summarizing a 1989 Bureau of Labor Statistics study and a report by the Institute for a Drug Free Workplace. See generally "Drug Testing in the American Workplace" (symposium), Nova Law Journal 11 (1987): 891.

[88] The American Management Association survey of its member firms, representing 25 percent of the total workforce, revealed that 75 percent of the 1,200 responding companies test for controlled substances but not alcohol. This represents a 250 percent increase over the 1987 baseline survey. Barbara Noble, "Testing Employees for Drugs," New York Times, April 12, 1992, sec. 3, p. 27.

[89] In September 1986 President Reagan issued Executive Order no. 12,564, mandating drug testing of federal applicants and workers in a variety of circumstances. The order implemented in part a more sweeping recommendation of the President's Commission on Organized Crime, aimed at all federal, state, and local government employees and employees of federal contractors. See Steven Wisotsky, "The Ideology of Drug Testing," Nova Law Journal 11 (1987): 763.

[90] 53 Federal Register 11979, sec. 2.29(f)(13), (16)(1988).

[91] Von Raab, at 681.

[92] Ibid., at 674.

[93] Ibid., at 677.

[94] Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989).

[95] Ibid., at 607.

[96] Von Raab, at 683. Justice Scalia continued to note the ideological basis for the testing:

The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service Employees announcing the program: "Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security." . . . What better way to show that the Government is serious about its "war on drugs" than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is "clean," and -- most important of all -- will demonstrate the determination of the Government to eliminate this scourge of our society! Ibid., at 686.

[97] Florida v. Royer, 460 U.S. 491, 498 (1983); see also United States v. Montoya, 473 U.S. 531 (1985); Florida v. Rodriguez,Southern University Law Review 14 (1984): 316-17. 469 U.S. 1, 5 (1984). Drug courier profiles vary, but all are based on a compilation of supposed common traits. They have been criticized for allowing impermissible intrusions on Fourth Amendment rights based solely on an agent's hunch. See "Drug Courier Profiles in Airport Stops,"

[98] United States v. Place, 462 U.S. 606, 706 (1983).

[99] New Jersey v. T.L.O., 469 U.S. 325, 333 (1985).

[100] United States v. Villamonte-Marquez, 462 U.S. 579, 593 (1983).

[101] Illinois v. Gates, 462 U.S. 213 (1983). Gates rejected the two-prong test for probable cause established in Aguilar v. Texas,Spinelli v. United States, 393 U.S. 410 (1969), in favor of a more loosely structured "totality of the circumstances" test. Gates, at 230. 378 U.S. 108 (1964), and

[102] United States v. Leon, 468 U.S. 897, 905 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984). To similar effect is Maryland v. Garrison, 480 U.S. 79 (1987).

[103] Oliver v. United States, 466 U.S. 170 (1984).

[104] United States v. Dunn, 480 U.S. 294 (1987).

[105] California v. Carney, 471 U.S. 386, 390 (1985).

[106] Illinois v. Rodriguez, 497 U.S. 177 (1990).

[107] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

[108] California v. Ciraolo, 476 U.S. 207 (1986).

[109] Florida v. Riley, 488 U.S. 445 (1989).

[110] United States v. Sharpe, 470 U.S. 675 (1985).

[111] Texas v. Brown, 460 U.S. 730 (1983); Michigan v. Sitz, 496 U.S. 444 (1990).

[112] California v. Acevedo, 111 S. Ct. 1982 (1991).

[113] United States v. Knotts, 460 U.S. 276, 284 (1983); United States v. Karo, 468 U.S. 705, 721 (1984).

[114] Arnold H. Loewy, "The Most Important Case of 1991," Section on Criminal Justice Newsletter, April 1991, p. 5.

[115] Florida v. Bostick, 111 S. Ct. 2382 (1991). See generally Ira Mickenberg, "Criminal Rulings Granted the State Board New Power," National Law Review 13 (August 19, 1991).

[116] Loewy.

[117] Ibid.

[118] Florida v. Bostick, 554 So. 2d 1153, 1158 (Fla. 1989) (emphasis in original).

[119] Postal Service Steps Up Effort Against Drugs," New York Times, July 15, 1991, p. B7.

[120] Pete Early, "Wiretaps Up 60 Percent, Reports Say," Miami Herald, June 16, 1984, p. A1.

[121] Marianne Lavelle, Fred Strasser, and Marcia Coyle, "Wiretaps Up," National Law Journal, May 27, 1991, p. 18.

[122] See, for example, "Police Wiretapping Scandal Exposed," National Association of Criminal Defense Lawyers, Washington Digest, January 12, 1990.

[123] Terry v. Ohio, 392 U.S. 1 (1968).

[124] Mark Leban, "Pretext Traffic Stops," Florida Bar Journal (February 1991), p. 51.

[125] Florida Department of Highway Safety and Motor Vehicles, Office of General Counsel, Common Characteristics of Drug Couriers (1984), sec. I.A.4.

[126] Mark Prendergast, "Highway Drug Searches Raise Questions," Fort Lauderdale News & Sun-Sentinel, February 26, 1984, p. A16.

[127] Dan Christensen, "Congressmen, Celebrities Included in U.S. Drug Files," Fort Lauderdale News & Sun-Sentinel, July 3, 1984, p. A1.

[128] Karen Payne, "U.S. List of Small Drug Deals Criticized," Miami Herald, March 26, 1985, p. D1.

[129] See note 79 above. Amendments to the Posse Comitatus Act, 18 U.S.C. sec. 1385, allow the military to gather in formation, advise, lend equipment, and deploy personnel at the request of local law enforcement officials with jurisdiction over drug or immigration offenses. Public Law No. 91-86, 95 Stat. 1114 (1981) (codified at 10 U.S.C. secs. 371-385 (1982)).

The U.S. Navy was partially exempted from the restrictions of the Posse Comitatus Act by regulations implementing the 1981 amendments, and naval vessels typically assist in drug interdiction operations by transporting Coast Guard officers to a target vessel and towing seized ships back to port. See United States v. Del Prado-Montero, 740 F.2d 113, 116 (1st Cir. 1984); 32 C.F.R. sec. 213.10(c) (1982).

[130] The Defense Drug Interdiction Assistance Act of 1986 continued this trend by authorizing a substantial increase in funding for interdiction efforts and greater use of military resources. Public Law No. 99-570, sec. 3052, reprinted in U.S. Code Congressional and Administrative News (1986), no. 10A.

[131] 10 U.S.C. sec. 124(a) (1989).

[132] "Defense Department's Impact on Reducing Cocaine Flow Has Been 'Negligible', Says Reports," Drug Enforcement Report, October 8, 1991, pp. 1, 4-5.

[133] Peter Copeland and Andrew Schneider, "When Civilians Call the Shots," Washington Times, July 7, 1992, p. A1, reports that Gen. George Joulwan, who oversees military operations in Latin America, has 10,000 troops at his disposal full time for counterdrug operations.

[134] "Proposed National Guard Cuts Will Not Affect Anti-Drug Efforts, Says ONDCP," Drug Enforcement Report, March 23, 1992, p. 7.

[135] Dick Cheney (secretary of defense), "Annual Report to the President and the Congress, Part III, Defense Components, Counterdrug Program" (February 1992), cited in News Briefs (Washington: National Drug Strategy Network, April 1992), p. 9.

[136] Ted Galen Carpenter and R. Channing Rouse, "Perilous Panacea: The Military in the Drug War," Cato Policy Analysis no. 128, February 15, 1990, p. 8.

[137] Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

[138] Albernaz v. United States, 450 U.S. 333, 334 (1981). Note that at least one state court has rejected Rehnquist's analysis. Compare Harmelin v. Michigan, 111 S. Ct. 2680 (1991)(life sentence for possession of cocaine found to be permissible under the federal Constitution) with People v. Bullock, No. 89661 (Mich. S. Ct., June 16, 1992)(life sentence for possessing cocaine found to be a violation of the Michigan constitution).

[139] The guidelines were upheld against constitutional challenge in Mistretta v. United States, 488 U.S. 361 (1989).

[140] Quoted in Zeese, "Mandatory Minimum Sentencing," The Drug Policy Letter (March/April 1991), p. 7. Judge Irving also mused about the possibility that in some future tribunal he and other federal judges might have to invoke the Nuremberg defense that they were only "following orders." Ibid.

[141] Quoted in ibid.

[142] United States v. Hunter, DDC, Cr. No. 90-938, reported in BNA Criminal Practice Manual (February 20, 1991), p. 89.

[143] Quoted in Michael Isikoff and Tracy Thompson, "Getting too Tough on Drugs," Washington Post, November 4, 1990, p. C1.

[144] See Garry Sturgess, "Mandatory Minimum Sentences under Attack," New Jersey Law Journal, June 13, 1991, p. 11.

[145] Lyle Denniston, "Mixed Signals Sent on Priority for User Prosecutions," Drug Enforcement Report, May 23, 1988, p. 4.

[146] "Criminal Drug Cases Soar" (graphic), USA Today, January 22, 1991.

[147] James Lawrence King, then chief judge of the southern district of Florida, one of the nation's premier drug circuits, was quoted as saying, "We're very close to not having a civil court. The ordinary citizen then has no place to go if his spouse has contracted asbestosis working in a Navy shipyard and is dying. . . ." Valerie Greenberg Itkoff, "Judges' Time Tilts to Crime," Broward Review, February 21, 1991, p. 3.

That point was actually reached in the middle district of Florida, where the court simply stopped hearing civil cases while it concentrated on its backlog of criminal cases. Ibid.

[148] 21 U.S.C. sec. 844a(a)(1988).

[149] 21 U.S.C. sec. 844(a)(g)(1988).

[150] Ibid.

[151] 21 U.S.C. sec. 853(a)(1988).

[152] 21 U.S.C. sec. 844(a) (1988). Probation and withholding adjudication of guilt are authorized.

[153] 23 U.S.C. sec. 104(a)(2) (1988).

[154] See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 (1974).

[155] Jon Nordheimer, "Tighter Federal Drug Dragnet Yields Cars, Boats, and Protests," New York Times, May 22, 1988, p. Y1.

[156] Sallie Hughes, "Customs Decides Today Whether To Return Yacht," Miami Herald, May 12, 1988, p. A19.

[157] Mark Thompson, "'Zero Tolerance' Pioneer Criticizes Recent Yacht Seizures," Drug Enforcement Report, June 8, 1988, p. D4.

[158] Aaron Epstein, "'Zero Tolerance' Backlash Brings Fury, Threatened Suit," Miami Herald, May 25, 1988, p. D8.

[159] Nordheimer, "Tighter Federal Drug Dragnet Yields Cars, Boats, and Protests."

[160] 21 U.S.C. sec. 881(a)(4)(C) (1988).

[161] Andrew Schneider and Mary Pat Flaherty, "Presumed Guilty," Pittsburgh Press, August 11-16, 1991 (reprint). The reprint reports on the many abuses involved in enforce ment of the forfeiture laws. See "Narrowing the Scope of Civil Drug Forfeiture: Section 881, Substantial Connection and the Eighth Amendment (Note)," Michigan Law Review 89 (October 1990): 166.

[162] United States v. Certain Real Property and Premises Known as 38 Whalers Cover Drive, 954 F.2d 29 (2d Cir. 1992).

[163] 21 U.S.C. sec. 881(a)(4)(C) (1988).

[164] United States v. 1012 Germantown Road, 963 F.2d 1496, 1499 (11th Cir. 1992).

[165] In re Forfeiture of 1981 Oldsmobile, VIN #1G3AZ57N2BE32296, 593 So. 2d 1087 (Fla. App. 1st 1992).

[166] See Powell and Hershenov, "Hostage to the Drug War."

[167] 21 U.S.C. sec. 881 (a)(7) (1988).

[168] PR Newswire Association, Inc., "HUD and Justice Announce Strike Against Drug Dealers in Public Housing," June 25, 1990.

[169] Drug Enforcement Administration chief administrative law judge Francis Young so found. Michael Isikoff, "Administrative Judge Urges Medicinal Use of Marijuana; DEA Expected to Reject Call for Limited Legalization," Washington Post, September 7, 1988, p. A2.

[170] Lester Grinspoon and James Bakalar, "Medical Uses of Illicit Drugs," in Dealing with Drugs: Consequences of Government Control, Ronald Hamowy, ed., (Lexington, Mass.: Lexington Books, 1987).

[171] Michael Isikoff, "U.S. Provides Marijuana for Some AIDS Patients," Washington Post, March 24, 1991, p. A3.

[172] "The Last Smoke," The Economist, March 28, 1992, p. 24. For a doctor to use the drug, a special protocol must be submitted to the Food and Drug Administration, and the Drug Enforcement Administration must issue a special license. Only about 30 such special arrangements have been made.

[173] Quoted in Michael Isikoff, "HHS to Phase Out Marijuana Program: Officials Fear Sending 'Bad Signal' by Giving Drug to Seriously Ill," Washington Post, June 22, 1991, p. A14.

[174] "The Last Smoke," The Economist, March 28, 1992, pp. 23-24.

[175] Congressional Research Service, "Heroin: Legalization for Medical Use," January 28, 1988.

[176] Canada legalized the use of heroin for the relief of pain in terminal cancer patients in 1984, but the drug's use is restricted by protocol. Ric Dolphin, "A Blistering Debate," MacLean's, February 27, 1989, p. 41.

[177] "AIDS Commission Calls for End to Needle Restrictions," Drug Enforcement Report, August 23, 1991, pp. 1-2.

[178] Brian A. Reaves, Drug Enforcement by Police and Sheriffs' Departments, 1990 (Bureau of Justice Statistics, May 1992), p. 1.

[179] Ibid., p. 2.

[180] Ibid.

[181] Ted Gest, "The Prison Boom Bust," U.S. News & World Report, May 4, 1992, p. 28.

[182] Fox Butterfield, "Are American Jails Becoming Shelters from the Storms?" New York Times, July 19, 1992, p. E4.

[183] Testimony of James Austin, Ph.D., Confirmation Hearings of Robert Martinez, 102nd Cong., 1st sess. (1991), microformed on CIS no. 91-S524-1 (Congressional Information Service).

[184] Ibid.

[185] Patrick Langan and Mark Cuniff, "Recidivism of Felons on Probation, 1986-89" (special report) (Bureau of Justice Statistics, February 1992).

[186] Smith v. Oregon, 721 P.2d. 445 (Or. 1986).

[187] See, for example, Sherbert v. Verner, 374 U.S. 398 (1963).

[188] Oregon v. Smith, 494 U.S. 872 (1990).

[189] Dennis Cauchon, "Feds Target 'High Times' Magazine," USA Today, June 25, 1990, p. B1. See also Paul Finkleman, "The Latest Front in the War on Drugs: The First Amendment," Drug Law Report, March-April 1991.

[190] But note that Sen. Dennis DeConcini introduced legislation aimed at publications like High Times. It would create a new four-year felony for any printed or published advertisement for a Schedule I controlled substance. The amendment's sponsor specifically mentions ads for marijuana seeds in the magazine High Times. The amendment exempts "material which merely advocates the use of a similar material, which advocates a position or practice, and which does not attempt to propose or facilitate" an actual drug transaction. DeConcini (D-Ariz.) amendment, June 27, 1991 (Congressional Record, p. S8897).

[191] Peter Gorman, "Marijuana McCarthyism," New York Times, December 30, 1989, sec. 1, p. 25.

[192] Katherine Bishop, "Business Data Is Sought in Marijuana Crackdown: Drug Agents Use Files to Go after Large-Scale Gardeners," New York Times, May 24, 1991.

[194] See, for example, Dexter Filkins, "Garden Suppliers Caught in the Middle of War on Pot," Miami Herald, October 21, 1991, p. A1.

[195] Michael Isikoff, "Legalize Drugs? Debate Grows Louder, Hotter; Proposal 'Scandalous,' Bennet Says; Present Policy 'Has Failed,' Federal Judge Asserts," Washington Post, December 13, 1989, p. A4.

[196] "Sweet Revenge," Legal Times, January 29, 1990, p.21.

[197] Ibid.

[198] Thomas Szasz, Our Right to Drugs: The Case for a Free Market (new York: Praiger, 1992); David Boaz, "A Drug Free America -- or a Free America?" University of California at David Law Review 24 (1991): 617.

[199] Stuart Taylor, Jr., "Ten Years for Ten Ounces," The American Lawyer, March 1990, p. 65. (Quoting Judge William Schwarzer.)

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