The Drug War and the erosion of rights

[Dr. Tom 0]

Drug War Shrinking Bill of Rights

Thursday, January 27, 2005

By Radley Balko

 

This week, the U.S. Supreme Court ruled that if you're pulled over by the police for speeding or, say, not wearing your seatbelt, they may bring out drug-sniffing dogs to investigate your car without violating the Fourth Amendment.

 

On the Volokh Conspiracy blog, Orin Kerr observes that Justice John Paul Stevens (search), writing for the majority, indicated that the Fourth Amendment protects not against violations of privacy or invasiveness, but against violation of property rights. Since one can't have property rights for illicit drugs, a search can't violate the Fourth Amendment.

 

It's a troubling precedent. It's hard to see how any police search would violate any rights under Justice Stevens' ruling, so long as the search turned up something illegal. That sort of undermines what the Fourth Amendment (search) is all about.

 

That case is just the latest in a number of court rulings and pieces of legislation that have been chipping away at the criminal justice rights of substance-abuse suspects. Ours is quickly becoming a two-tiered criminal justice system, one in which there are one set of criminal protections for drug and alcohol defendants, and a broader set of protections for everyone else.

 

Last month in Virginia, pain physician Dr. William Hurwitz (search) was convicted on dozens of counts of drug distribution. Prosecutors and the foreman of the jury that convicted him conceded that Hurwitz didn't knowingly participate in a drug trade, but because the pain medication he prescribed made it to the black market, he was nevertheless found guilty. He faces life in prison. Proving intent — as is required to secure a conviction in nearly every other crime — apparently wasn't necessary.

 

The drug war has been eating at the Bill of Rights since its inception. Asset forfeiture laws, for example, allow law enforcement to seize the assets of suspected drug dealers before they're ever convicted of a crime. Even if the defendant is acquitted or the charges are dropped, the mere presence of an illicit substance in a car or home can mean the loss of the property, on the bizarre, novel legal principle that property can be guilty of a crime.

 

Thanks to mandatory minimum sentencing laws, a judge in Utah recently had no choice but to sentence a first-time marijuana dealer to 55 years in prison (he had a pistol strapped to his ankle during the one-time deal, though he never brandished it). Frustrated but hamstrung by drug laws, the judge in the case noted that just hours earlier, he had sentenced a convicted murderer to just 22 years for beating an elderly woman to death with a log. Courts have carved out a "drug war exemption" in the Bill of Rights for multiple search and seizure scenarios, privacy, wiretapping, opening your mail, highway profiling, and posse comitatus — the forbidden use of the U.S. military for domestic policing.

 

The other area where criminal protections are withering in the face of substance-abuse hysteria is in Driving Under the Influence or Driving While Intoxicated cases.

 

The most notable example is the 1990 case of Michigan vs. Sitz (search), where the Supreme Court ruled that the problem of drunk driving was so pervasive, the Court could allow "random sobriety checkpoints" in which cops stop motorists without probable cause and give them breath tests, a practice that would otherwise again violate the Fourth Amendment.

 

The Court has since ruled that the urgency of the drunken driving problem gives states the option to legislate away a motorist's Sixth Amendment (search) right to a jury trial and his Fifth Amendment (search) right against self-incrimination. In 2002, the Supreme Court of Wisconsin ruled that police officers could forcibly extract blood from anyone suspected of drunk driving. Other courts have ruled that prosecutors aren't obligated to provide defendants with blood or breath test samples for independent testing, even though both could be done relatively easily.

 

State legislatures have pounced on these rulings. The state of Washington just passed two laws remarkable in their disdain for everything our criminal justice system is supposed to represent. The first instructs juries in drunk driving cases to consider the evidence "in a light most favorable to the prosecution," an evidentiary standard that's unheard of anywhere else in criminal law. The second mandates that breath test evidence be admissible, no matter what — even if the defense can prove that the breath test machine was broken, or jiggered toward higher readings.

 

Last year, Pennsylvanian Keith Emerich had his license revoked by state authorities after he revealed to his doctor during an emergency room visit that he sometimes drinks a six-pack of beer per day. His doctor reported him. Emerich wasn't accused or charged with drunk driving. In a bizarre twist on the principle of "presumption of innocence," Emerich must now prove to the state that he doesn't drive after drinking before he can get his license back.

 

More and more states are taking advantage of the Supreme Court's granted exemption to a right to a jury trial for DUI-DWI suspects, particularly in states where judges are elected, not appointed. That, of course, is because elected judges deemed insufficiently harsh on such defendants can have their "leniency" used against them when it comes time for re-election.

 

Though no such bill has yet to be signed into law, several state legislatures have also now considered bills that would mandate ignition interlock devices in every car sold in the state. New Mexico's version of the law would require all drivers to blow into a tube before starting their car, then again every ten minutes while driving. Drivers over the legal limit would not be able to start their cars or, if already on the road, given a window of time to pull over. Onboard computer systems would keep data on each test, which service centers would download once a month or so and send to law enforcement officials for evaluation.

 

The problem, as Thomas Jefferson famously said, is that the natural process of things is for liberty to yield and for government to gain ground. It would take a rare and brave politician to stand up and say that we need to roll back or reconsider our drug laws, or that it's unfair to give accused murderers or rapists more rights than we give DWI defendants. But that's exactly what needs to happen.

 

Radley Balko maintains a Weblog at: www.TheAgitator.com.

(LOL2005~!!!!!11!!11one!!!)

 

Particularly troubling points are emphasized, sometimes more than once.

 

Most of you know that I'm a social liberal, and I find the Drug War sickening and repugnant. I was aware of some of these ridiculous offenses of basic rights, but not all, and this article/editorial was quite eye-opening. It's amazing what courts are allowed to get away with in the name of punishing drug and DUI offenders. When a first-time pot dealer gets more than double the sentenced prison time as a guy who BEAT AN OLD WOMAN TO DEATH, then something is seriously wrong with our criminal justics system.

[Guest Ether]

Yet oddly, at least in my area, the courts give at most a slap on the wrist for prescription drug forgers. Many pharmacists don't even bother reporting it to the police because it usually turns out to be a waste of time. Oh well.

[Your Paragon of Virtue 0]

When the logic used by the US Supreme Court is ridiculously flawed and noticable by someone like me, something is wrong with the system.

 

Isn't DUI drunk driving? I thought you were in favour of putting a bullet in all of their heads anyway?

[Justice 0]

Isn't DUI drunk driving? I thought you were in favour of putting a bullet in all of their heads anyway?

I think, arguably, it's driving under any mind-altering drug. But still, the point stands that this is pretty damn disturbing stuff.

[Dr. Tom 0]

DUI is driving under the influence, a lesser offense than driving while intoxicated. And while I'm in favor of shooting any drunk driver who maims or kills someone in a traffic accident, some of these measures are positively byzantine. A guy gets his license taken away because he told HIS ER DOCTOR that he *sometimes* drinks a 6-pack in a day? What happened to doctor-patient confidentiality, or is that gone too in the zeal to lock up everyone who's ever sipped a martini and driven in the same calendar week? Now, in a system that's supposed to presume innocence, this fellow has to prove that he doesn't drive drunk in order to get his license back. It's an absurd abuse of basic legal rights.

[Your Paragon of Virtue 0]

DUI is driving under the influence, a lesser offense than driving while intoxicated. And while I'm in favor of shooting any drunk driver who maims or kills someone in a traffic accident, some of these measures are positively byzantine. A guy gets his license taken away because he told HIS ER DOCTOR that he *sometimes* drinks a 6-pack in a day? What happened to doctor-patient confidentiality, or is that gone too in the zeal to lock up everyone who's ever sipped a martini and driven in the same calendar week? Now, in a system that's supposed to presume innocence, this fellow has to prove that he doesn't drive drunk in order to get his license back. It's an absurd abuse of basic legal rights.

You're definitely right, I just wanted clarification is all.

 

The whole property thing is what I'm still baffled over. It reminds me of one of those loophole angles in wrestling. Needless to say, it's not something I'd expect to hear about happening in a country that isn't run by some dictatorship in a third world country.

[Jingus 0]

This is real modern-day Les Miserables shit right here. I wish I could say that any of this surprised me, but it doesn't. It's depressing (if not terrifying) to see the extent that drug users are persecuted above and beyond all other criminals. I'm amazed that half that shit could even be legal in this country, much less established and protected by the courts themselves.

[Guest Agent of Oblivion]

It'll result in more dead cops, or is at least putting their lives at stake, and making the road more dangerous. If I'm sitting at home smoking a joint or something, I'm not going to feel so bad about blowing someone away if I'm going down for the rest of my natural life anyhow. If I'm in the car, I'm running. That's just me, the quoteunquote "otherwise responsible user." Apply this theory to crackheads..of course when a policeman does lose his life just doing his job because the legislators think it's a SIN to smoke dope, it's going to because there aren't ENOUGH police on the street..and drug laws aren't tough enough.

[Guest Vitamin X]

You know how much better the economy on all levels of government would be if they just removed criminal sentences for possession and use (including the retarded paraphernelia law which almost got me busted in Ft. Lauderdale), and instead sentenced these folks to rehab or something similar for stronger/harder drugs?

 

I support the complete decriminalization of all drugs, with the full legalization of marijuana, but of course my argument's never quite taken seriously since I get "called out" on being biased because I've used them before (never got me in trouble though, outside of the paraphernelia incident). I hate to see the law dictating what I put or don't put into my body, since I, or any other sensible individual, can take full responsibility for what they do or happens to them as a result of taking said drugs.

[Guest Vitamin X]

Apply this theory to crackheads..of course when a policeman does lose his life just doing his job because the legislators think it's a SIN to smoke dope, it's going to because there aren't ENOUGH police on the street..and drug laws aren't tough enough.

 

And to make matters worse, the DEA recently classified marijuana as a higher priority drug to target moreso than the growing meth problem (which has skyrocketed over the past few years, as I can personally testify to) or any of the other various, much more harmful substances.

[Spicy McHaggis 0]

Most of you know that I'm a social liberal, and I find the Drug War sickening and repugnant. I was aware of some of these ridiculous offenses of basic rights, but not all, and this article/editorial was quite eye-opening. It's amazing what courts are allowed to get away with in the name of punishing drug and DUI offenders. When a first-time pot dealer gets more than double the sentenced prison time as a guy who BEAT AN OLD WOMAN TO DEATH, then something is seriously wrong with our criminal justics system.

Couldn't agree more. The War on Drugs is pretty much a waste. What really are the negatives of legalization?

[Guest Agent of Oblivion]

Strictly moral qualms held by a (barely) minorty of the population, I'd wager. I bet most of them would change their minds if they knew the mountains of tax revenue that could be brought in.

[Spicy McHaggis 0]

Exactly right, AoO. Corporate manufacturing would probably blow the cartels up faster than any other means.

 

And I don't really get the moral objections. I mean, drugs aren't my thing, but I drink alcohol moderately. Abuse of anything is bad, but drugs can be used w/o being abused.

[Highland 0]

Drugs are simply the witchcraft of the modern times, with all the accompanying hysteria and where the mere accusation is enough for presumption of guilt and therefore the harshest punishments.

[Justice 0]

Only problem I have with the legalization of all drugs is, well, how does Cocaine and other processed drugs pass the FDA? Pot is grown, so whatever. But while I'm not for the mass prosecution of them, I think that we can't just legalize it all.

[Jingus 0]

Of course we shouldn't legalize it all. Hard drugs are just a tiny fraction of the thousands of chemicals which are simply too dangerous to allow the public to use them freely. Cocaine is heavily addictive and can cause heart attacks, so it'd be right out.

 

But marijuana? I've not heard one single convincing argument for keeping weed illegal.

[NoCalMike 0]

Kind of Ironic how drug use is considered to be a worsening crime, while obesity levels are rising and food companies are basically poisoning us with the stuff they put into food in order to make it cheaper to produceas the FDA and Drug companies keep getting looser with what they allow to be regulated into our food supply. Aren't we to the point now that Canada and Europe won't even take meat from us anymore? Also at the same time Bush said trying to keep the air cleaner with better regulated enviornmental laws and provisions is going to "hurt our economy" and thus is refusing to have a role in a universal global policy, that his "good friend" Tony Blair is basically begging him to get involved in.

[Guest Vitamin X]

Only problem I have with the legalization of all drugs is, well, how does Cocaine and other processed drugs pass the FDA? Pot is grown, so whatever. But while I'm not for the mass prosecution of them, I think that we can't just legalize it all.

Not sure if you're 100% clear on it, but I'm for the legalization of all drugs in that there shouldn't be any jail time administered to drug users (which would include posession, paraphernelia, use, and under the influence, unless it involves driving a motor vehicle of course). People who commit crimes under the influence of a drug would be sent to rehab or fined for first time offenders.

 

Of course we shouldn't legalize it all. Hard drugs are just a tiny fraction of the thousands of chemicals which are simply too dangerous to allow the public to use them freely. Cocaine is heavily addictive and can cause heart attacks, so it'd be right out.

 

But marijuana? I've not heard one single convincing argument for keeping weed illegal.

There are drugs readily available in cold medicines, everyday household products, and over the counter energy drinks and the like that are just as dangerous, if not moreso, than many hard drugs available today, as you very well know by your Robitussin experiences. Not to mention alcohol, which has addictive properties comparable to those of cocaine (though far less than nicotine and heroin).

 

Anyone who hasn't seen it, check out http://www.drugwarfacts.org/ and you just might see a few interesting things in there you hadn't known before.

[Guest Brian]

Could companies really control marijuana production if it was legal to the point where it could be taxed?

[NoCalMike 0]

Could companies really control marijuana production if it was legal to the point where it could be taxed?

No, but if it was legal, it is unlikely people would need to buy it anyway. I mean everyone would know SOMEONE that grew it. Unless they tried to make it illegal to grow your own or something, but that of course would still keep the black market problem alive. I mean that is the unique thing about Marijuana, you just grow it, harvest it, smoke it. It is just that a PLANT. Which is hard to understand why it was ever made illegal in the first place.

[Sass 0]

Weed is a gateway drug. It will make people want to do harder drugs after they develop too strong of a tolerance for the high from weed. Then, people will go seek harder drugs to get high off of. That will then lead them into doing cocaine and other harder drugs.

 

At least that was the explanation I got from Reefer Madness.

 

Should weed really be classified as a drug?

[The Metal Maniac 0]

People who commit crimes under the influence of a drug would be sent to rehab or fined for first time offenders.

 

Now, do you mean in addition to whatever penalties their crime might carry, or that is all they should get?

 

Because if you're high on coke and you shoot someone, I think you should go to jail first; then worry about rehab.

 

Also, on pot taxes; I think that's one of the reasons that pot is still illegal. What I mean is, right now, you can still go out and buy pot, from a number of locations. If pot was suddenly made legal, there's no reason to assume that those places that were selling pot suddenly don't have anymore; they'd probably even be able to undercut the government on price, since the government has to deal with taxes and the overhead of running places and hiring people to sell pot. That, and dealers are probably more convienent (for some people). Why drive all the way to the legal pot, when your buddy down the street has some to sell?

 

I think that's ONE of the reasons; if pot was legal, the government would not be able to control it as much as they would like.

 

Weed is a gateway drug.

 

Personally, I think that is somewhat correct - but only because in order to get weed, you have to go to drug dealers, who could very well be selling other drugs. So when you go to get your weed, you're also exposed to coke, shrooms, acid; all kinds of stuff that you wouldn't run in to if pot was sold over the counter in places that didn't sell other drugs.

 

And yes, it should be classified as a drug, because it can alter the way you behave/think, which, in my understanding, is what a drug is.

 

I mean, isn't caffine a drug?

[The Czech Republic 0]

I'm about ready to throw up my hands and surrender in the War On Drugs. It's getting to be a really useless and hopeless money pit. If people are going to do drugs, then as long as they do it in private and don't let the effects of their altered state unwillingly infringe on people, then I don't really care any longer. I just don't want used needles all over city sidewalks, or people having to inhale secondhand marijuana smoke, or any criminal actions that come from being under the influence. But if you absolutely have to do drugs, as long as I'm not effected, have at it.

[Jingus 0]

If it were legalized, the marijuana business would probably become a mirror image of the tobacco industry in very short order. Sure, you can grow your own tobacco and roll your own cigarettes, but it's a lot easier to just pay someone else to do all the work and accept the nasty chemical addititves as a "tax" of sorts.

[Guest Vitamin X]

People who commit crimes under the influence of a drug would be sent to rehab or fined for first time offenders.

 

Now, do you mean in addition to whatever penalties their crime might carry, or that is all they should get?

 

Because if you're high on coke and you shoot someone, I think you should go to jail first; then worry about rehab.

Oh, that's certainly in addition to whatever penalties their crime might carry. I personally don't believe someone drugged out enough could carry out a well-planned robberry or murder, but you never know, I suppose. I just don't see it happening, but in that case I would definitely put them in jail and have them rehab while they're in there. The point of being sent to prison is being correction, not punishment. If they have a drug problem that led to the crime being committed, then there should be adequate rehabilitation services provided, but if it is a petty crime or misdemeanor, I think a heavy fine, probation, and rehab is in order rather than jail time for possession or use.

 

Also, on pot taxes; I think that's one of the reasons that pot is still illegal. What I mean is, right now, you can still go out and buy pot, from a number of locations. If pot was suddenly made legal, there's no reason to assume that those places that were selling pot suddenly don't have anymore; they'd probably even be able to undercut the government on price, since the government has to deal with taxes and the overhead of running places and hiring people to sell pot. That, and dealers are probably more convienent (for some people). Why drive all the way to the legal pot, when your buddy down the street has some to sell?

 

I think that's ONE of the reasons; if pot was legal, the government would not be able to control it as much as they would like.

 

I personally can tell you I've been in many a situation- I'm in one right now actually- where I'm unable to get bud for one reason or another. All it takes is for one connection to break, and suddenly everyone's paranoid. I don't much fancy going into the areas where I do buy my bud, either, and the $20 that's the standard price for a fuckin gram of weed is seriously overpriced. Whatever the government charges, it'll probably be much better. And I'd love weed cigarettes too. No more clumsily rolling joints for me!

Weed is a gateway drug.

 

Personally, I think that is somewhat correct - but only because in order to get weed, you have to go to drug dealers, who could very well be selling other drugs. So when you go to get your weed, you're also exposed to coke, shrooms, acid; all kinds of stuff that you wouldn't run in to if pot was sold over the counter in places that didn't sell other drugs.

I think the gateway drug argument is bullshit. The same argument could be used for people who smoke cigarettes, drink alcohol or caffeine, or that eat certain types of foods. The only thing that I will agree on is that people looking to buy weed will be exposed to the other nasty shit by way of these dealers, but if all drugs were legalized, the dealers/black market would have much less influence and would be pretty much rendered irrelevant in the grand scheme of things.

And yes, it should be classified as a drug, because it can alter the way you behave/think, which, in my understanding, is what a drug is.

 

I mean, isn't caffine a drug?

Sure it is. But that's not what people refer to when they say someone is a drug addict, it's not that they're drinking too much coffee (even if it is literally true). Smoking marijuana is far less damaging, physically as well as mentally, than drinking and smoking cigarettes.

[The Metal Maniac 0]

I don't much fancy going into the areas where I do buy my bud, either, and the $20 that's the standard price for a fuckin gram of weed is seriously overpriced. Whatever the government charges, it'll probably be much better.

 

I think that really kinda depends.

 

I mean, I never pay more then 10 a gram, unless I get it from this one dude who sells 5 for 60 - but his shit is great, so it all works out. Anyway, I can't imagine the government would go much lower then that, especially when you factor in their taxes and the overhead of selling it and stuff.

 

And if it was legal, it's possible the on-the-street price would drop. I dunno how much, but I wouldn't be at all shocked if some of that 20 dollars was just in there because one guy didn't wanna risk his neck for only (X) profit.

 

But that's really just speculation; I don't think it'd be possible to find out what would happen with legal weed unless it was made legal.

 

And I'd love weed cigarettes too. No more clumsily rolling joints for me!

 

That would be nice.

 

The only thing that I will agree on is that people looking to buy weed will be exposed to the other nasty shit by way of these dealers, but if all drugs were legalized, the dealers/black market would have much less influence and would be pretty much rendered irrelevant in the grand scheme of things.

 

Exactly man, exactly. I mean, I know from personal experience that the only reason I ever did shrooms was because my dealer had some and I figured "what the hell?" I mean, I may have done them anyway, but having to go to a drug dealer just makes it more likely that you'll try other drugs.

 

Smoking marijuana is far less damaging, physically as well as mentally, than drinking and smoking cigarettes.

 

Yeah, but I don't think that means you can say "it's not a drug", mainly because saying that implies that it isn't harmful at all, which simply isn't true. I mean, I know it's much less harmful then other drugs, but inhaling smoke isn't healthy. I suppose you could just eat it, but still; I wouldn't say it's not a drug, because it still does mess with your head, and it does mess with your health. Maybe not a whole lot, but enough to be called a drug.

[Guest Brian]

If it were legalized, the marijuana business would probably become a mirror image of the tobacco industry in very short order. Sure, you can grow your own tobacco and roll your own cigarettes, but it's a lot easier to just pay someone else to do all the work and accept the nasty chemical addititves as a "tax" of sorts.

Actually, growing tobacco is not an efficient crop. It takes a ton out of the soil and is very hard to care for. Marijuana is pretty easy to seed and can gorow in the wild. My grandmother, during the Depression, couldn't afford cigarettes and would go into the wild and pick weed and smoke it. That's in Kentucky, mind you, but it can work here in the Northwest as well. It's a weed.

[iggymcfly 0]

The gateway drug argument is, in my opinion, the stupidest argument ever formed to justify the illegality of marijuana. The only reason marijuana is a gateway drug is because it's illegal.

 

Right now you've got two bridges between sober living and hard drugs. You've got alcohol which is dangerous but legal, and the you have marijuana which is illegal, but not dangerous. I guarantee that the legalization of marijuana would reduce hard drug usage way more than all the billions of dollars that the government could possibly spend on prosecutions and advertising.

 

I'm glad to see that most of the people in this thread are level-headed, but the idea that the government wants to destroy civil rights and hand out unprecedented punishments in such a fruitless and unconstitutional effort is really disgusting.

[Guest Vitamin X]

I mean, I never pay more then 10 a gram, unless I get it from this one dude who sells 5 for 60 - but his shit is great, so it all works out. Anyway, I can't imagine the government would go much lower then that, especially when you factor in their taxes and the overhead of selling it and stuff.

Good lord, where do you live to get so much weed for cheap? Or it must be some crappy weed. Everywhere I've gone.. mostly all along the southern United States from LA to Miami.. It's almost always 20 for a gram of good bud, though I get this very average bud with sticks and seeds in it, a quarter-ounce for $20.

 

Exactly man, exactly. I mean, I know from personal experience that the only reason I ever did shrooms was because my dealer had some and I figured "what the hell?" I mean, I may have done them anyway, but having to go to a drug dealer just makes it more likely that you'll try other drugs.

 

Yup. I knew a kid who had smoked bud and was the coolest guy to hang out with during high school when he only smoked buds and did shrooms on occasion. Dipped into acid every now and then, but he remained a cool guy until he moved away for a year to another part of town, came back after having to try to find some new connections for weed and just happened to run into one of the first people introducing crystal meth to our part of LA. 3 years later after 2 overdoses and running the full gauntlet of drugs between him, I, and a host of other people we've both known, we don't speak at all anymore and I live on the other side of the country trying to get my life back. So I've seen the worst and best parts of it.

[The Metal Maniac 0]

Good lord, where do you live to get so much weed for cheap?

 

Nova Scotia, Canada.

 

Yeah. Ten dollars Canadian.

 

I couldn't give you a fair comparison of how good the weed is, mostly because I've never had weed from anywhere else. All I know is that it's much better then the stuff in Ontario - or so the guy from Ontario said - and it gets me high. So I'm happy.

 

I think it's partially because of the fact that Halifax is a port city, so they can get the stuff in there, then right out to the streets. But I dunno really.

 

All I do know is that now, I'm REALLY glad to be Canadian.