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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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