A Society of Suspects: The War on Drugs and Civil Liberties - The Crackdown: Legislative, Executive, and Judicial

The Crackdown: Executive, Legislative, and Judicial

How did we descend from the world's beacon of liberty to a land where:

  • on a nationwide television broadcast, the drug czar endorses the idea of beheading drug dealers;[19]
  • the full Senate votes to shoot down suspected drug planes;[20]
  • a congressman offers an "Arctic Penitentiary Act," a bill to create "an American Gulag" of remote prison camps for drug offenders;[21]
  • a man who rapes a teenager, hacks off her hands, and leaves her to die in the desert serves less time in prison than a first-offender mother of two who accepts $1,000 to carry a kilo of cocaine from one city to another;[22]
  • cocaine gigolos are paid by the government to entice lonely-hearts divorcees into an illegal drug transaction so that they can then be prosecuted;[23]
  • the sheriff of Broward County, Florida, manufactures his own crack cocaine for undercover cops to sell to buyers in order to arrest them;[24]
  • the House of Representatives resolves that the president should deploy the armed forces of the United States to seal off the borders to "substantially halt the influx of drugs" into the United States within 45 days;[25]
  • the U.S. invades a sovereign nation causing the deaths of hundreds of people and causing millions of dollars in property damage, to gain jurisdiction over the head of its government, General Manuel Noriega, for alleged drug trafficking;[26]
  • several million staid civil servants and applicants for the civil service have to urinate into a bottle, sometimes under the close observation of a monitor, so they may be pronounced fit to file papers and answer telephones;[27]
  • we pursue policies that Justice Scalia aptly described as the "immolation of privacy and human dignity in symbolic opposition to drug use."[28]

A short history of the War on Drugs provides the answer. It shows how all three branches of the federal government have joined in the crackdown on drugs, sacrificing individual freedom in the process.

After the baby boom drug scene (and scare) of the 1960s, American society was well on its way to reaching an accommodation with marijuana. Prodded by the National Commission on Marihuana and Drug Abuse, 10 states and a number of localities had adopted some form of decriminalization of marijuana. Mainstream professional organizations such as the American Medical Association, the American Bar Association, and the American Public Health Association had passed resolutions endorsing some form of decriminalization of marijuana.[29] The reform movement reached its apogee in 1977 when President Carter endorsed a similar proposal.[30]

The backlash was not long in coming. The advent of cocaine[31] -- a 1981 Time magazine cover featured a martini glass of white powder, topped by an olive, and captioned "Cocaine: Middle Class High?" -- changed public perceptions and had a lot to do with the political shift. In 1982 President Reagan, moved by congressional pressure[32] and widespread community support,[33] committed his administration to a "war" on drugs:

The mood towards drugs is changing in this country and the momentum is with us. We are making no excuses for drugs -- hard, soft, or otherwise. Drugs are bad and we are going after them.[34]

The president continued this hard-line rhetoric in a second speech just 12 days later, pledging an "unshakable" commitment "to do what is necessary to end the drug menace" and "to cripple the power of the mob in America."[35]

There ensued the greatest buildup and mobilization of law enforcement resources in American history. Not only were the obvious law enforcement agencies -- the Drug Enforcement Agency, Federal Bureau of Investigation, Coast Guard, and Customs Service, to say nothing of state and local police forces -- pressed into greater antidrug service, but a vast number of other agencies were mobilized as well: the Central Intelligence Agency (gathering of drug intelligence declared by presidential order to be a national security matter), the State Department (negotiation of crop destruction initiatives, mutual assistance treaties, and the like), the U.S. Navy (providing aid to Coast Guard interdiction boarding parties), and the National Aeronautics and Space Administration (satellite surveillance of coca and marijuana fields), among others.[36] All those agencies and more were deployed by the president in what would prove to be a futile effort to stem the influx of drugs into the United States.

Congress, for its part, fell right in step with the drumbeat of war. It repeatedly raised and reraised the drug enforcement budget. Over the decade that budget rose almost tenfold, from about $1.2 billion in FY 1981 to about $11.7 billion in FY 1992, and it is still growing.[37] But Congress did not limit itself merely to voting money. It also showed a breathtaking legislative zeal in passing major antidrug bills in the preelection Octobers of 1984, 1986, and 1988. As Justice William H. Rehnquist had written for the Court in 1981:

The history of the narcotics legislation in this country reveals the determination of Congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter.[38]

Rehnquist's comment both epitomized the past and foretold the future, for the antidrug packages of the 1980s repealed or diminished many of the protections previously guaranteed to those accused of crime, such as pretrial release on bail,[39] and significantly expanded the reach of federal investigative power.

Symbolic of the crackdown -- because Congress lacks the power to limit Fourth Amendment protections -- were literally hundreds of bills aimed at abolishing or limiting the judicially crafted exclusionary rule, which bars the use at trial of evidence seized in violation of the Fourth Amendment. In the same vein, Congress (along with many of the states) actually succeeded in ratcheting penalties for most drug offenses up to levels exceeding those customarily meted out for the most serious crimes of violence: robbery, rape, and noncapital murder.[40]

When we turn to the federal judiciary -- the "least dangerous branch,"[41] in Alexander Hamilton's immortal phrase, with life tenure and an institutional commitment to decisions based on fact and principle -- we find reason overwhelm ed by the same antidrug fervor. One federal judge, denouncing drug crimes as "unforgivable," adumbrated the jurisprudence of hostility when he condemned drug dealers as "merchants of misery, destruction and death" whose greed has wrought "hideous evil" and "unimaginable sorrow" upon the nation.[42]

Nor is this hot rhetoric an aberration. On the contrary, it draws upon a judicial tradition rich in extremism.[43] One federal court called narcotics "worse than poisons" because they make men and women "moral perverts."[44] Even the most freethinking judges have succumbed to this easy labelling in place of analysis. Justice William O. Douglas, for example, wrote in a concurring opinion that "to be a confirmed drug addict is to be one of the walking dead . . . ,"[45] and he continued with a parade of horribles having no basis in reality, citing only a legal newspaper by way of authority.[46]

Almost never do appellate judges rely on the rich scientific literature on the use and abuse of alcohol, tobacco, and other drugs, which would provide a factual basis for decisions. The U.S. Supreme Court has never cited a single one of the classic studies on drugs and drug control.[47] Instead of reasoned analysis, the courts have tended to rely on superstitious imagery, as in this Fifth Circuit opinion:

Except in rare cases, the murderer's red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner's evil image -- others who create others still, across our land and down our generations, sparing not even the unborn.[48]

Driven by such imagery, the court concluded that "[c]ompared to the effect of drug traffic in society, isolated violent crimes may well be considered the lesser of the two evils."[49] Again, this is not an isolated example. More recently, the Supreme Court reached essentially the same conclusion in Harmelin v. Michigan, its mandatory life sentence decision of 1991:

Petitioner's suggestion that his crime was nonviolent and victimless . . . is false to the point of absurdity. . . . [A] rational basis exists for Michigan to conclude that petitioner's crime is as serious and violent as the crime of felony murder without specific intent to kill.[50]