These are some of the many ways the War on Drugs has cut deeply – and threatens to cut deeper still – into Americans’ privacy, eroding what Justice Louis D. Brandeis described as “the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. ” Working hand-in-hand with the political branches, the courts have diminished constitutional restraints on the exercise of law enforcement power. In addition to expanded powers of surveillance, investigation, and prosecution, punishment has been loosed with a vengeance, against enemy and bystander alike.
Punishments have become draconian in part because of permission conferred by Justice William Rehnquist’s 1981 circular dictum: “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. ”
The penalties have become so extreme, especially since the 1987 enactment of the Uniform Sentencing Guidelines, that many Federal judges have begun to recoil. US. district court Judge J.Lawrence Irving of San Diego, a Reagan appointee, announced his resignation in protest over the excessive mandatory penalties he was required to mete out to low-level offenders, most of them poor young minorities. Complaining of “unconscionable” sentences, the judge said that “Congress has dehumanized the sentencing process. I can’t in good conscience sit on the bench and mete out sentences that are unfair. ”
Judge Harold Greene of the District of Columbia went so far as to refuse to impose the minimum guideline sentence of 17.5 years on a defendant convicted of the street sale of a single Dilaudid tablet, pointing to the “enormous disparity” between the crime and the penalty. In the judge’s view, the minimum was “cruel and unusual” and “barbaric. ” Fourth circuit Judge William W. Wilkins objected to mandatory penalties because “they do not permit consideration of an offender’s possibly limited peripheral role in the offense. ” Agreeing with that thinking, the judicial conferences of the District of Columbia, Second, Third, Seventh, Eighth, Ninth, and Tenth circuits have adopted resolutions opposing mandatory minimums.
As drug control policymakers came to realize that the drug dealers were, in an economic sense, merely entrepreneurs responding to market opportunities, they learned that attacks on dealers and their supplies never could succeed as long as there was demand for the products. Thus, they would have to focus on consumers as well as on suppliers. Pres. Reagan’s 1986 Executive Order encouraging or requiring widespread urine testing marked a step in that direction. By 1988, Administration policy was being conducted under the rubric of “zero tolerance. ” In that spirit, Attorney General Edwin Meese sent a memorandum to all US.
Attorneys on March 30, 1988, encouraging the selective prosecution of “middle and upper class users” in order to “send the message that there is no such thing as |recreational’ drug use…. ” Because of the volume of more serious trafficking cases, however, it was not remotely realistic, as the Attorney General must have known, to implement such a policy. Indeed, in the offices of many U. S. Attorneys, there were minimum weight or money-volume standards for prosecution, and the possession and small-scale drug cases routinely were shunted off to state authorities.
In fact, in many districts, the crush of drug cases was so great that the adjudication of ordinary civil cases virtually had ceased. The courthouse doors were all but closed to civil litigants. In the name of zero tolerance, Congress purposely began enacting legislation that did not have to meet the constitutional standard of proof beyond a reasonable doubt in criminal proceedings. In 1988, it authorized a system of fines of up to $10,000, imposed administratively under the authority of the Attorney General, without the necessity of a trial, although the individual may request an administrative hearing.
To soften the blow to due process, judicial review of an adverse administrative finding is permitted, but the individual bears the burden of retaining counsel and paying court filing fees. For those unable to finance a court challenge, this system will amount to punishment without trial. Moreover, it has been augmented by a provision in the Anti-Drug Abuse Act of 1988 that may suspend for one year an offender’s Federal benefits, contracts, grants, student loans, mortgage guarantees, and licenses upon conviction for a first offense. Both sanctions are a form of legal piling on.
The legislative intent is to punish the minor offender more severely than is authorized by the criminal law alone. Thus, the maximum penalty under Federal criminal law for a first offense of simple possession of a controlled substance is one year in prison and a $5,000 fine, with a minimum fine of $1,000. Fines up to $10,000 plus loss of Federal benefits obviously exceed those guidelines. The most recent innovation of this kind is a form of greenmail, a law that cuts off highway funds to states that do not suspend the driver’s licenses of those convicted of possession of illegal drugs.
The potential loss of work for those so punished and the adverse consequences on their families are not considered. The suspension is mandatory. Seizure and forfeiture The War on Drugs not only punishes drug users, it also penalizes those who are innocent and others who are on the periphery of wrongdoing. The most notable example is the widespread and accelerating practice, Federal and state, of seizing and forfeiting cars, planes, boats, houses, money, or property of any other kind carrying even minute amounts of illegal drugs, used to facilitate a transaction in narcotics, or representing the proceeds of drugs.
Forfeiture is authorized, and enforced, without regard to the personal guilt of the owner. It matters not whether a person is tried and acquitted; the owner need not even be arrested. The property nonetheless is forfeitable because of a centuries-old legal fiction that says the property itself is “guilty. ” Relying on it, in March, 1988, the Federal government initiated highly publicized zero tolerance seizures of property that included the following:
* On April 30, 1988, the Coast Guard boarded and seized the motor yacht Ark Royal, valued at $2,500,000, because 10 marijuana seeds and two stems were found on board. Public criticism prompted a return of the boat, but not before payment of $1,600 in fines and fees by the owner. * The 52-foot Mindy was impounded for a week because cocaine dust in a rolled up dollar bill was found on board. * The $80,000,000 oceanographic research ship Atlantis II was seized in San Diego when the Coast Guard found 0.01 ounce of marijuana in a crewman’s shaving kit.
The vessel eventually was returned. * A Michigan couple returning from a Canadian vacation lost a 1987 Mercury Cougar when customs agents found two marijuana cigarettes in one of their pockets. No criminal charges were filed, but the car was kept by the government. * In Key West, Fla. , a shrimp fisherman lost his boat to the Coast Guard, which found three grams of cannabis seeds and stems on board. Under the law, the craft was forfeitable whether or not he had any responsibility for the drugs.