A Society of Suspects: The War on Drugs and Civil Liberties - The 'Drug Exception' to the Bill of Rights

The "Drug Exception" to the Bill of Rights

The crackdown mentality has thus permeated every branch of government and every aspect of our criminal justice system -- legislation, investigation, prosecution, adjudication, and punishment. It reaches even casual users. It threatens the freedom of everyone. And it forms the basis for the growing "drug exception" to the Bill of Rights.[51]

Invoking the language of war, federal judges have concluded that there is a need "to combat a national drug problem of epidemic proportion"[52] and that "the federal government's efforts to contain and beat back the drug scourge . . . depend importantly on convincing all Americans that drug use is as much a danger to them and to our country as is an external enemy."[53] In short, the government must be able to invoke wartime emergency powers to do whatever is necessary to repel the drug invasion. Thus the courts have rejected virtually every constitutional challenge to drug enforcement laws and practices, no matter how extreme. For example, they have accepted:

  • the kidnapping of American citizens and foreign nationals from foreign soil to stand trial in American courts, even when such action may violate general principles of international law;[54]
  • the Customs Service's power to conduct rectal examinations of travelers to the United States;[55] and
  • the enactment of a mandatory life sentence without parole for first-time offenders for possession of more than 650 grams [less than two pounds] of cocaine.[56]

Occasionally, a court will issue a warning about the importance of taking "great pains to ensure that the Constitution does not become the first casualty in the 'War on Drugs.'"[57] For the most part, however, the courts have sanctioned ever more repressive measures.

It would be a Faustian bargain if this repression succeeded in significantly reducing drug supplies or the violence and corruption engendered by the black market in drugs. But it has not done even that. Throughout the 1980s, cocaine[58] and heroin[59] flowed into this country with apparent ease, in record quantities, and at lower prices and higher purity. The sole exception was marijuana, with interdiction of foreign-grown crops leading to a thriving domestic agriculture, thereby making the cannabis plant a leading American cash crop.[60] And while middle-class drug use fell off sharply in the pre-drug war period,[61] intensified law enforcement went hand-in-hand with an increase in the numbers of addicted, or hard-core, users of cocaine and heroin.[62]

The specter of a drug supply out of control was only compounded by the destructive effects of drug money and drug trafficking: the rise of "narcoterrorism" in our major cities, burglaries and robberies committed by addicts in search of the next score or fix; drive-by shootings and warfare between competing drug gangs in the struggle for control of urban turf; and the destruction of families and neighborhoods. All these resulted from the laws of supply and demand: drugs made expensive (and lucrative] by being made illegal.[63]

The nation's capital came to lead America's cities in the rate of homicides, most of them said to be drug-related.[64] In foreign affairs, drug violence threatened struggling democratic governments in Latin America, as Colombia and Peru[65] teetered on the edge of drug-financed civil war, thus undermining one of America's major foreign policy goals.[66] And our own institutions -- police, courts, banks, and others -- were corrupted by the fabulous lucre of the drug industry.[67]

Thus, by the close of the decade, after numerous escalations, domestic and foreign, of the War on Drugs, and the expenditure of tens of billions of dollars on that war, the drug problem was widely perceived to be out of control. Politicians exploited public fears; following President Bush's nationally televised address on the drug problem in September 1989, the percentage of poll respondents that ranked drugs as the nation's number one problem tripled.[68] Most also thought that the curtailment of personal freedoms was justified as a means of solving the problem. A Washington Post poll[69] showed that 52 percent of respondents agreed that police should be allowed to search the homes of suspected drug dealers without a search warrant, 67 percent were willing to have their cars stopped and searched without a warrant, and 83 percent approved of reporting family members to the police.[70]

Responding to this atmosphere of crisis, President Bush, who had previously pledged war on cocaine, "the scourge of this Hemisphere,"[71] declared a further escalation of the general war.[72] The familiar public policy cycle was thus complete: crackdown, failure, frustration, anger and fear, escalation, failure, and so on, ad infinitum. Wartime images provide powerful motivations for the masses, as George Orwell showed in his classic book, Nineteen Eighty-Four. It is thus no accident that politicians have resorted to martial rhetoric to exhort the public to support the perpetual war effort and their endless expansions of power.

Such exhortations are difficult to oppose without appearing "soft" on drugs. Because of that political risk, the "Great Endarkenment" in American political life has come to pass: it is now good politics for public officials, elected and appointed alike, to compete over who is simultaneously tougher on drugs and less respectful of the Bill of Rights. Edward Koch, when mayor of New York, advocated strip searching all travelers from South America and Asia.[73] Governor Douglas Wilder of Virginia advocated mandatory drug testing of all college students.[74] Chicago police superintendent LeRoy Martin argued for lifting the constitutional prohibition against random searches of people to help police do a better job.[75]

Thus, if the Bill of Rights, political tradition,[76] or other legal protections slow down law enforcement operations, the prevailing attitude is to get rid of those impediments. It was just this spirit that animated Rep. Earl Hutto's (D-Fla.) lament in Congress that "in the war on narcotics, we have met the enemy, and he is the U.S. Code. I have never seen such a maze of laws and hangups. . . ."[77] That due-process-be-damned attitude came to the fore again in a memorandum from Attorney General Richard Thornburgh directing federal prosecutors to disregard state ethics rules because they impose "a substantial burden on the law enforcement process."[78] His spokesman, Associate Deputy Attorney General Margaret Love, described the ethical restriction on ex parte prosecutorial contact with a defendant represented by counsel as "a distraction" from the Department of Justice's mission of getting "the bad guys."[79]

What has become open season on the Constitution probably began in good faith, if not naivete. After all, what could be more reasonable than to think it possible to frighten prospective drug dealers by getting tough, by upping the ante. Turning the screw -- increasing the risks of detection, apprehension, and punishment -- would, so it seemed, make the drug business less attractive to many "by significantly increasing the risk of conviction and certainty of long prison sentences."[80]

But incentives and the operation of the law of supply and demand are rather more complex in the case of so-called victimless crimes. Because there are no complainants -- indeed, there are only willing parties -- the acts and exchanges that are criminalized continue to take place, but at a price that reflects the risks and costs of arrest and punishment. Far from significantly reducing those acts or exchanges, therefore, the criminalization that brings about the higher prices only creates market opportunities for those willing to run the risks.

No realistic level of enforcement can make a difference in the dynamics of this market, as we learned in the era of national prohibition. Yet, despite clear economic principles, buttressed by historical evidence, political leaders in both parties have found it easier to believe or say that the drug business, unlike the alcohol business, would yield to force majeure. What has yielded instead is our liberty and the integrity of our civil institutions.

A Society of Suspects

In the beginning, the War on Drugs focused primarily on drug supplies and drug suppliers, but in time it spread its tentacles into the lives of the citizenry at large. Control at the source was the first thrust of antidrug policy -- destruction of coca and marijuana plants in South America, crop substitution programs for the campesinos, and aid to law enforcement agencies in source countries such as Colombia, Peru, Bolivia, and Mexico.

Because this aspect of drug policy had no discernible, lasting success, a second initiative aimed to improve the efficiency of border interdiction of drug shipments that had escaped control at the source. But there too, success was elusive. Record numbers of drug seizures -- up to 22 tons of cocaine in a single raid on a Los Angeles warehouse, for example,[81] -- seemed only to mirror a record volume of drug shipments to the United States. By 1991 the amount of cocaine seized by federal authorities had risen to 134 metric tons, with an additional amount estimated at between 263 and 443 tons escaping into the U.S. black market per year.[82]

As source control and border interdiction proved futile, a third prong of the attack was undertaken: long-term, proactive conspiracy investigations targeted at suspected high-level drug traffickers and their adjuncts in the professional and financial worlds -- lawyers, accountants, bankers, currency exchange operators, and the like. This third leg of the policy has involved repeated and systematic attacks by the federal government on the criminal defense bar, raising dark implications for the integrity of our adversarial system of justice. Defense lawyers have been subjected to grand jury subpoenas, on pain of criminal contempt, for the purpose of compelling disclosures about their clients. Informants have been placed in the defense camp to obtain confidential information. In each instance, the effect has been to undermine the protections traditionally afforded by the attorney/client relationship.

One notorious example of tampering with the attorney/client relationship involved prosecutor Scott Turow, author of Presumed Innocent.[83] Turow was criticized by the Court of Appeals for the Eleventh Circuit for "reprehensible" conduct for making a deal with a lawyer named Glass who, to avoid being indicted himself, offered to sell out his drug defendant client. Wearing a recording device, Glass informed on his client over a period of months before finally withdrawing as defense counsel.[84] Although the court stated that Turow might have committed obstruction of justice and asked the Department of Justice to investigate, he escaped reprimand or prosecution.[85] And the betrayed client's conviction was upheld on appeal.

Although this case is perhaps the most notorious incident of its kind, it demonstrates the anything-goes-in-the-War-on-Drugs attitude of the Department of Justice, which publicly defended using lawyers as informants as "a perfectly valid" law enforcement tool.[86]