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The "war on drugs" began as a rhetorical
flourish used by Richard Nixon to contrast his tough stand on crime with LBJ's
"war on poverty." But as the Reagan, Bush, and Clinton administrations poured
billions of dollars into fighting drugs, the slogan slipped the reins of
metaphor to become just a plain old war with an army (DEA), an enemy (profiled
minorities, the poor, the cities), a budget ($17.8 billion), and a shibboleth
(the children). As in any war, our political leaders have asked us citizens to
make some sacrifices for this higher cause. When George Bush entered office, a
Washington Post. ABC News poll found that 62 percent of Americans "would be
willing to give up a few of the freedoms we have" for the war effort. They have
gotten their wish. Initially applied only to the buyers and sellers of drugs,
exceptions to our fundamental rights have been quickly enlarged to include every
one of us. Bill Clinton's legacy is not the drug-free zone he wanted but a
moth-eaten Bill of Rights.
1. Most Americans consider the right to
free speech, adopted as the First Amendment to our Constitution, to be
unassailable. But in less than thirty years the tacticians of the drug war have
found ways to erode this bedrock liberty. In 1996 voters in California, by
referendum, permitted doctors to recommend marijuana as part of medical therapy.
Alarmed that states were breaking ranks, the federal drug czar, General Barry
McCaffrey, threatened to arrest any doctor who merely mentioned to a patient
that marijuana might alleviate the suffering caused by AIDS, cancer, or other
serious illnesses. Still, by last year, voters in seven states had approved the
medical use of marijuana. In November 1998 an initiative in the District of
Columbia tried to do the same. For almost a year no one knew whether the
referendum had passed, because Rep. Bob Barr (R., Ga.) impounded the $1.65 it
would have cost to tally the vote. Finally, last September, the courts overruled
Barr. Seven out of ten D.C. voters had decided in favor of legalization.
Refusing defeat, Barr pushed a bill through Congress that blocked the spending
needed to enact the new law. As fallback, Barr has also proposed a joint
resolution of Congress to simply overturn by fiat the will of the people
expressed freely and fairly at the ballot box.
2. In 1984, the state of Oregon denied
unemployment benefits to two Native American workers fired for using an illegal
hallucinogen-peyote -- during a religious ceremony that predates the Christian
custom of drinking sacramental wine by some 8,000 years. Once upon a time, the
decision would have been simple. Freedom of religion. Case closed. But Supreme
Court Justice Antonin Scalia, one of the drug war's unacknowledged generals,
decided that religious freedom would have to yield to the new drug-war
orthodoxy. He declared that any law aimed at the drug menace could restrict
religious liberty as long as it wasn't directly couched in bigoted language.
But, in short order, the state began plowing directly into the affairs of more
traditional religions. In 1993 the bitterest enemies, left and right, banded
together to pass the Religious Freedom Restoration Act. Only seven months after
the act was passed by a rare unanimous vote in the House and a nearly unanimous
vote in the Senate -- a Texas church challenged local zoning laws on religious
grounds. The suit eventually appealed its way to the Supreme Court, which,
citing the peyote case, declared RFRA unconstitutional. Enraged, Congress has
pledged to continue its dangerous constitutional pissing match with the
judiciary. All this to prevent two citizens from practicing an ancient rite
involving a scarce and rarely abused drug.
3. Assembling peaceably at the voting
booth is a waning American tradition these days -- in part because the drug war
is creating a growing and dangerous population of constitutional outcasts. As
more people pass through our prisons, more emerge permanently forbidden from
voting. Although most states merely disenfranchise felons in prison or on
parole, ten vindictive states--Alabama, Delaware, Florida, Iowa, Kentucky,
Mississippi, Nevada, New Mexico, Virginia, and Wyoming--have banished more than
one million rehabilitated felons from the voting booth forever. Just who these
pariahs are is telling: possession of several grams of crack (a crime for which
urban blacks are disproportionately prosecuted) makes you an instant felon,
while possession of the same substance as powdered cocaine (a drug predominantly
used by whites) results in misdemeanors. According to government statistics,
blacks constitute only 14 percent of our drug-using population but 58 percent of
those finally convicted. What literacy tests and poll taxes once did in
containing black suffrage has found a contemporary replacement. (This is nothing
new: in South Carolina at the turn of this century, adultery, arson, and
housebreaking were crimes deemed necessary for disenfranchisement; murder--then
thought to be largely a white crime -- was not.) In Mississippi there are
145,600 disenfranchised voters, of which 125,000 are ex-felons and 81,700 are
black men. Today, one in three black men in both Alabama and Florida is
permanently barred from voting.
4. In 1762 the Crown of England sanctioned
the use of "writs of assistance" -- general warrants that permitted the king's
deputies to enter any place at any time in search of contraband, then mainly
molasses, tea, and rum. Colonial fury with the writs fueled America's rebellion
and, later, inspired the prohibition of" unreasonable searches and seizures."
Since the early 1980s, the Supreme Court has authorized cascading exceptions to
this rule, allowing police helicopters to peer into windows, highway troopers to
search the passengers of cars whose drivers seem suspicious, and, most
notoriously, state agents to smash down doors without warning and without
evidence of a crime. Last August, E1 Monte, California, police raided the home
of sixty-three-year-old grandfather Mario Paz. At least twenty armed officers
shot the locks off the back and front doors. They ordered Paz to put his hands
on the bed. Although he did, one of the officers believed that Paz was "reaching
for something." So the officer shot Paz, who was unarmed, in the back two times,
killing him. No drugs or any evidence of dealing were found. The man the police
had been looking for had lived next door more than fifteen years earlier. These
"dynamic entries," as they are called, are on the rise. New York City has had to
develop a policy for replacing the doors of homes mistakenly entered. Last year,
New York police broke into the home of retired baker Basil Shorter, dragged his
retarded, menstruating daughter from the shower, and handcuffed her while she
bled down her legs. Although no drugs were ever found, investigators insisted
that their informant's "information was good." Drug dealers, they explained, can
operate out of the homes of innocent people without their knowledge.
5. The once sacred protection of property
rights is now regularly violated by drug police. Beginning in 1974 the Supreme
Court blessed the unholy idea that property could be seized and sold by the
government without any arrest, conviction, or due process. Under the strange
fiction that property itself can be guilty (e.g., United States v. One 1974
Cadillac Eldorado Sedan), the cops take your property, leaving you to prove that
it has no connection to a crime. If you miss the ten-day deadline for
challenging the seizure, or can't post bond, you lose. The rule has been a boon
for miserly town councils. In California, when San Jose's police chief asked why
he'd been allocated no money for equipment, he was told "just seize it." For
years state and local police had little incentive to divert their cruisers from
local law enforcement to nabbing drug couriers passing through their
jurisdictions. Then the feds pointed out that relaxed search and seizure laws
plus easy forfeiture rules equaled windfall profits. Troopers began aggressively
trawling their highways, using the new pseudoscience of profiling to determine
likely suspects. (Profiling quickly declined into a simple racial litmus test.
In 1999 the New Jersey highway patrol admitted that they'd falsified reports to
hide their practice of routinely stopping black drivers but finally defended
racial profiling because, well, it's just easier.) Law-enforcement agencies
became so greedy that some states passed laws diverting the forfeiture treasure
to the schools. But the Missouri Highway Patrol has devised a counterscheme
tantamount to money laundering. When the locals make a big bust, they call the
DEA and let the feds carry out the seizure. On average, the DEA keeps 20 percent
of the forfeited property for "processing" costs and kicks back 80 percent to
the local police. Since 1993, Missouri law enforcement has earned $41 million in
seized assets and handed over less than $12 million to schools.
6. Any grade-school child knows that when
you have been accused of a crime, you have a right to confront your accusers.
But with drugs it's different. Unlike most felonies that involve a criminal and
a victim, drug sales involve two willing participants. So to find out about such
transactions, the police rely on inside information, effectively deputizing a
posse of faceless informants. Because many snitches are employed more than once,
the Supreme Court eliminated the right to face your accuser in a notorious 1983
ruling, Illinois v. Gates, which sanctioned the use of anonymous informants.
Moreover, any defendant choosing to go to trial risks infuriating the judge by
clogging his schedule. Most suspects, innocent or not, plead guilty and then cop
a lesser sentence by becoming snitches themselves. Faceless informants are often
paid by the police, and many of them continue their drug habits, now subsidized
by taxpayers. In effect, the drug war has reduced our justice system to a
tournament of snitches.
7. In service to the war on drugs, we have
abandoned the traditional requirement that punishment maintain some proportion
to the crime committed. Judges no longer have the discretion to tailor prison
sentences to fit individual circumstances. Instead, Congress has dictated
"mandatory minimums," reflexively tied to the amount and kind of drug possessed
or sold. Sentencing guidelines were born out of the noble intention to reduce
inequality in our justice system. Too often judicial discretion meant that
blacker, poorer defendants got stiffer sentences than whiter, richer convicts.
But the plan has backfired. Poor minorities remain the overwhelming target for
harsh sentences, but now the drug war's ever more voracious appetite finds
victims within every class and race. Take, for instance, the case of
sixty-one-year-old Marvin Harris, the devout Mormon engineer who invented the
transistor radio. In 1991, Harris and his wife drove a friend's motor home back
from Mexico. When they stopped at the border, a customs agent found 1,500 pounds
of cocaine hidden in the vehicle's walls. (The friend has disappeared.) Stunned
by the amount of contraband involved, a jury convicted the couple of conspiring
to import and distribute cocaine. The judge, tormented that a great injustice
was occurring, but now powerless to apply his "judgment," instead wailed from
the bench at being forced to sentence them to a mandatory minimum of ten years.
Even the prosecutor expressed regret at the outcome. Now in their seventh year
of federal incarceration, the Harrises, model inmates, lead fellow prisoners in
Bible study. Meanwhile, the machine grinds on.
8. America launched a "war on alcohol" in
1920 and endured many familiar unintended consequences: Rights were eroded.
Decent people were redefined as "criminals." And the cops, overwhelmed by an
impossible duty, simply collapsed into corruption. When America ended the war in
1933, the public didn't legalize alcohol in every instance. The law forbids
minors from drinking, sales are controlled and heavily taxed, and drunkenness
does not legally excuse a crime. Alcoholism is now treated in clinics, not in
courts. The current drug war could end just as reasonably, except it won't. In
September, General McCaffrey announced that the ranks of the enemy had swelled.
"The typical drug user is not poor and unemployed," he said, citing a study
revealing that seven in ten admitted drug users had full-time jobs. "He or she
can be a co-worker, a husband or wife, a parent." Now the enemy is us, creating
an eerie sense of historical deja vu. The necessary "policies" -- no-knock
entry, property forfeiture, anonymous snitch indictments, frozen
elections--would sound quite familiar to Thomas Jefferson, who cited as reasons
for rebellion, "swarms of Officers to harass our People," who "eat out [our]
substance" while "depriving us, in many cases, of the benefits of Trial by Jury"
and "taking away our Charters." Not long after the war those words provoked,
James Madison warned his young country: "I believe there are more instances of
the abridgment of the freedom of the people by gradual and silent encroachments
of those in power than by violent and sudden usurpations."
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