Is the Bill of Rights a Casualty of the War on Drugs?

    Eric E. Sterling, President,
    The Criminal Justice Policy Foundation
    1899 L Street, N.W., Suite 500
    Washington, D.C. 20036
    esterling@igc.org

        Remarks prepared for delivery to the COLORADO BAR ASSOCIATION
        92nd Annual Convention Aspen, Colorado September 14, 1990 (Revised later)

    Good afternoon. I'm going to talk to you this afternoon about the "war on drugs" and its effects on the Bill of Rights. There isn't any question that drug abuse is one of our nation's most serious public health problems. In some instances, drug abuse can cause birth defects in babies, mental retardation and learning disabilities in children, mental illness in teenagers and adults, as well as death and suicide. Addiction to tobacco causes at least 300,000 deaths a year and billions of dollars of economic losses. Abuse of alcohol causes some 100,000 deaths per year, and thousands more crippling injuries.
    The criminal traffic in drugs usually involves violence and murder, bribery, and tax evasion. Many drug addicts commit theft, fraud, burglary or robbery to get the money to buy expensive drugs. There is a tiny criminal traffic in alcohol, and crime committed to buy alcohol, in contrast to crime committed under the influence, is not great. Obviously, drug abuse and drug trafficking are very serious problems.
    This afternoon I'm going to be critical of our war-like approach to the drug problem. But that doesn't mean that I think drugs are good. I don't. I don't think we can win the "war on drugs," but that doesn't mean we can't be a lot more effective in dealing with the drug problem. Basically, we have to manage the drug problem—that is, the distribution has to be regulated and policed and subject to the forces of law and order.
    The war on drugs is a war on all of us. Who is the enemy in the war on drugs? It is not the drugs because the drugs are mere chemicals. We have a war on drugs no more than we have a war on carbon dioxide.
    In the eyes of the government, the obvious enemy is everyone who uses illegal drugs, and everyone who gives them aid and comfort. Of course, the obvious enemy includes everyone who buys drugs, who sells drugs, who transports drugs, who grows marijuana.
    But there are hidden enemies. The hidden enemy is every person not actively working to purge drug users from our society. The hidden enemies include the employers of people who may use drugs if the employer fails to adopt steps to root out drug users -- even if employees are competent and perform well.
    The hidden enemy is every parent of a drug user who fails to turn their child over to the police or fails to use every means to coerce their child into stopping his or her drug use.
    The hidden enemy is every lawyer who represents a person accused of violating the drug law.
    The hidden enemy is everyone who makes or exhibits a motion picture that makes jokes about drug use. The hidden enemy is every merchant who sells cigarette rolling papers. The enemy hidden is every radio station that plays rock 'n' roll from the 1960s and 70s.
    The hidden enemy is our next door neighbor, our bowling buddy or golfing partner, our mail carrier, our secretary, our spouse. We are the government's hidden enemy.
    When you have a hidden enemy, you need to use extremely powerful weapons. As in Vietnam, when you can't find the hidden enemy, sometimes weapons are used that injure the innocent. A foundation of our system of justice is that it is to protect the innocent. That foundation has been filled by the termites of the war on drugs.
    This afternoon let's examine the weapons being used by the government against its enemies in the war on drugs and examine the casualty list.
    It is my thesis that among the most tragic casualties in the "war on drugs" are our constitutional liberties. To start, let's go through the Bill of Rights in the Constitution one-by-one to see how they have been affected by the war on drugs.
    The First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." "What does the First Amendment have to do with drugs?" you ask.
    I want to bring two examples to your attention: the first is the decision of the United States Supreme Court, Employment Division of Oregon v. Smith (494 U.S. 872, 110 S.Ct. 1595, 1990). In that case two Native Americans were discharged from employment in the drug treatment program for which they worked because they used peyote as part of their participation in the religious practices of the Native American Church. Peyote is the sacrament in that church. They applied for unemployment benefits after they were fired, and the State of Oregon turned them down. The Oregon Supreme Court, however, found that as participants in the Native American Church they had a right to use peyote, and said they were entitled to benefits.
    But the Oregon Attorney General, Dave Frohnmeyer, Republican candidate for Governor, saw the case differently. In his view, the war on drugs can not tolerate drug use. If a drug treatment program demands a "drug-free" staff, Native Americans who worship with their sacrament ought to be fired. And an appropriate government weapon in the war on drugs is to deny such people unemployment benefits.
    Notwithstanding well settled Supreme Court precedents that denial of these benefits impermissibly restricts the free exercise of religion, Attorney General/gubernatorial candidate Frohnmeyer appealed to the U.S. Supreme Court.
    It is important to stress that peyote is the sacrament in the Native American Church—it is used by over 250,000 Native American worshippers. They don't consider it a drug anymore than Catholics think of communion wine as a drug, or as a refreshing beverage.
    The Supreme Court, 5 to 4, reversed the Oregon Supreme Court, and in the process threw out the long-standing doctrine that a State's burden upon the free exercise of religion can only be justified by a State "compelling interest" that cannot be served by less restrictive means (Sherbert v. Verner, 374 U.S. 398, 406 (1963), Cantwell v. Connecticut, 310 U.S. 296 (1940)). Consider the background: the respondents were never prosecuted by Oregon for their use of peyote. There is no evidence that anyone has ever been harmed by the religious use of peyote. 23 States and the Federal government exempt the religious use of peyote from the Controlled Substances Act. Indians who use peyote as part of the Native American Church are less likely to abuse drugs or be alcoholic than those who do not.
    Here is a case where use of a religious sacrament, because it has been classified by law enforcement authorities as a drug, but nevertheless an essential component of the way in which people worship and have worshipped for hundreds of years, became the basis for denying unemployment benefits. From the perspective of the international, multi-billion dollar war on drugs, this case was totally insignificant. Unlike crack or heroin, the use of peyote is not destroying people, their families, or cities like New York, or nations like Colombia.
    Most importantly, this case was a purely a symbolic battlefield in the war on drugs. Yet this totally insignificant drug case became the occasion for restricting the religious freedom of all Americans by narrowing the applicability of the Free Exercise clause. Justice Blackmun wrote ironically in his dissent, "One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated." (Dissenting Slip Opinion at 2.)
    Justice Blackmun put his finger on the problem: this trashing of the Free Exercise of Religion was purely an overreaction to the drug problem, and the Bill of Rights was a casualty. As we will see, this result is hardly new.
    Let's look at another way in which the First Amendment is being undermined by the war on drugs—in this instance, the freedom of the press. This summer, a magazine about drugs and the drug culture—High Times—is being investigated by the U.S. Attorney in Louisiana for aiding and abetting the illegal cultivation of marijuana. The magazine prints a column called "Ask Ed" that gives tips on improving marijuana cultivation. High Times is also being investigated for printing advertisements for "grow lights," irrigation equipment that can be used for growing, among other plants, marijuana, and an advertisement for "The Seed Bank", a business in the Netherlands that would mail seeds for growing marijuana.
    This investigation is not an obscenity case. This is not an investigation of an "incitement to imminent lawless action" under Brandenburg v. Ohio (395 U.S. 444 (1969)). This is an old- fashioned threat of prosecution for seditious writing. This harks back to the dark days of the 1918 Sedition Act and the prosecution of filmmaker Robert Goldstein, sentenced to 10 years in prison for his unbecoming portrayal of the British (then U.S. wartime allies) in a film about the American Revolution, and the conviction of Eugene Debs for criticizing Teddy Roosevelt's support of World War I.
    Once again, in the charged atmosphere of war, the fundamental freedom of press is endangered.
    The second amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." Gun control advocates argue that this amendment does not guarantee an individual right. (Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), and U.S. v. Miller, 307 U.S. 174 (1939).) However, having been responsible for Federal gun control legislation between 1981 and 1989, I have read many of the law review articles on the origins and meaning of the Second Amendment (See e.g. Stephen P. Halbrook, Ph.D., J.D., THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (University of New Mexico Press 1984); To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787 - 1791, 10 Northern Kentucky Law Review 13-39 (1982) reprinted in 131 CONG. REC., 99th Cong., 1st Sess., S9105- 9111, July 9, 1985); The Right to Bear Arms in the First State Bills of Rights, 10 VERMONT LAW REVIEW 255-320 (1985)). I think there is an individual right to keep and bear some arms. There are scores of millions of Americans who possess a .22 rifle for target practice, a handgun for personal or family protection, or a shotgun for hunting. Perhaps there are a few such Americans in this room today. I think that such firearms possession is protected by the Second Amendment.
    But the extremism of the war on drugs manages to infringe on that right. If, after surgery let's say, you use your wife's Valium or your husband's pain medication, and the prescription was not issued to you, you are an unlawful user of drugs. If you also happen to be exercising your Second Amendment rights and possess a firearm in your closet or gun cabinet, your possession of the firearm makes you, at that moment, a Federal felon subject to a ten-year sentence and a quarter million dollar fine (18 U.S.C. 922(g) and 924(a)(2)). This penalty also applies to the millions of American gun owners who use marijuana, even those who live in states for which the penalty for possessing marijuana is a minor civil offense as it is here in Colorado. If you receive a shotgun for Christmas and accept it, having twice been convicted of possession of marijuana or another drug, you are subject to a mandatory five years in prison (18 U.S.C. 924(c) and 21 U.S.C. 844(a)).
    The politically manufactured fear (See Kaplan, MARIJUANA— THE NEW PROHIBITION, (1970) 91-146, and materials cited therein.) of the blood-thirsty maniac killer of "Reefer Madness," led Congress to prohibit any person who was addicted to or used illegal drugs from receiving a firearm. The blunderbuss weapon of an overbroad law was created. Thus, millions of Americans, whose illegal use of drugs is a minor or technical violation, are felons and potential casualties because of their exercise of Second Amendment right to posses firearms.
    Incidentally, common sense is also a casualty in the war on drugs. Prison is one place we don't want convicts to have firearms. In 1984, a ten year prison term was established for possessing or bringing a firearm or bomb into a Federal prison. In 1988, Senator Phil Gramm of Texas insisted that the penalty for bringing heroin, cocaine or LSD into prison be raised from 3 years to 20 years. Now possession of drugs in prison is twice as serious as possessing a firearm or a bomb, rocket or grenade. When the stupidity of this amendment was pointed out, the Senator's counsel insisted that it was Gramm's contribution to the 1988 Anti-Drug Abuse Act and it had to be in the bill. (18 U.S.C. 1791(b)(1); P.L. 100-690, sec. 6468(a), (b)).
    The Third Amendment prohibits in time of peace the quartering of soldiers in any house. You recall, of course, that in the 18th century the King of England quartered soldiers in homes to keep an eye on the unruly, disloyal colonists. About all the King had were soldiers—he had few other officials to police the behavior of citizens. Police as we know them today were not invented until the 19th century. Well, today government mandated urine testing is the contemporary equivalent of quartering troops in homes. The disloyal person who smokes marijuana in his home Saturday night while watching a home video, who is urine tested by government order on Tuesday, suffers the same degrading, invasive surveillance as if the King's soldier were sitting there in the living room monitoring the citizen's private activity.
    Now the government uses infra red cameras in military satellites designed to find the hot engines of enemy vehicles moving at night to look over houses in America to find those that show up as excessively warm. This evidence is used for obtaining records of electricity use to see if someone might be growing something indoors that he or she shouldn't be. Now instead of merely stationing soldiers in homes, the war on drugs uses "Buck Rogers" weapons—the technology of 21st century warfare—to look right through the ceiling into our homes. The privacy from military surveillance embodied in the third amendment is another casualty.
    The Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." Then the amendment spells out the procedure for issuing warrants. Every member of this audience who practices criminal law knows that every interpretation of this amendment that ever extended the "right of the people to be secure" has been reversed in the 18 years since President Richard Nixon declared war on drugs. From the first days of the war on drugs, new exceptions to the warrant requirements, to the probable cause requirements, to the particularity requirements, have been created—and almost all of these have been in drug cases. Those of you who do not practice criminal law, who studied criminal procedure in law school ten or fifteen years ago would be shocked. Lead cases you knew such as Aguilar v. Texas (378 U.S. 108 (1964)), and Spinelli v. U.S. (393 U.S. 410 (1969)), are gone, overruled in drug cases, rationalized by the exigencies of the war on drugs. (See e.g. Wisotsky, Exposing the War on Cocaine: The Futility and Destructiveness of Prohibition, 1983 WISCONSIN LAW REVIEW 1305, 1418-1420.)
    The Fourth Amendment has been so watered down that the search of a person for evidence of drug use—without any evidence of drug use, without any individualized suspicion—is, in the words of Justice Scalia, "a kind of immolation of privacy and human dignity in symbolic opposition to drug use." (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, (1989)).
    By this time, you must be wondering if the Bar Association turned this program over to some radicals who cooked up the inflammatory title, "Is the Bill of Rights a casualty of the war on drugs?" Well, a fairly conservative newspaper, USA Today, on November 15, 1989 entitled its lead, cover story "The War on Drugs- -Are Our Rights on the Line?" On the cover was a photograph of the Broward County, Florida Sheriff manufacturing crack cocaine to sell in stings of drug buyers. The subheadline is "Some Worry Police Out of Control." The story begins, "As the war on drugs intensifies, there is growing concern that the battle is claiming an unintended victim, our Constitutional rights. Emboldened by recent Supreme Court rulings, police across the U.S.A. are adopting aggressive tactics including neighborhood sweeps, no- knock searches, reverse stings and property seizures. 'I've lived through a lot of crime crises but we've never gone out of control like this,' says University of Michigan law professor Yale Kamisar, an expert on police searches."
    "In Detroit, police raided a food market in a drug neighborhood, held the owner and seized his profits after dogs sniffed cocaine on three one dollar bills in his cash register. Quoting Denver Federal Judge Richard Matsch, a Nixon appointee, 'I wonder where the United States is headed. My concern is that the real victim of the war on drugs might be the Constitutional rights of the American people.'"
    The Fourth Amendment, in its requirement that warrants "particularly describe" the place to be searched and the objects of the search requires that the information that sustains a search be recent, Rugendorf v. U.S. (376 U.S. 528 (1964)), Sgro v. U.S. (287 U.S. 206 (1932)). If an informant tells a police officer, "You know, it seems to me that last winter I remember that Joe had some marijuana on the table in his living room," it is not permissible to rely on that information as the basis for a search today to find marijuana.
    Now consider a case reported in USA Today (Nov. 15, 1989, p.A1), from Hudson, New Hampshire. At 5:00 a.m., August 3, 1989, police came to the home of Bruce Lavoie, 34, a machinist with a wife and three children. Without announcing themselves and without evidence that Lavoie might be armed, police smashed the door with a battering ram. Police had a search warrant based in part on an informant's tip that was 20 months old. "As he rose from his bed, apparently resisting the intruders, Mr. Lavoie was fatally shot as his son watched. A single marijuana cigarette was found."
    The casualties are not just abstractions, they have children, now orphans, who will never feel their father's hugs again, all innocent victims of the war on drugs. Incidentally, pickets later defending the police use of deadly force carried signs reading, "Druggies have no rights."
    The Fifth Amendment sets forth many rights and procedures including the prohibition against depriving any person of "life, liberty or, property, without due process of law." In the 1986 Anti-Drug Abuse Act, Congress created a scheme of mandatory sentences in drug cases (which I played a major part in drafting). Two levels of mandatory sentences were set forth for transactions in quantities of drugs greater than certain threshold quantities which was intended to give U.S. Attorneys the direction to focus on the highest level traffickers, and not waste time on the small fry. Unfortunately the enacted thresholds, as watered down by the Senate and in conference, are no longer based on the realities of the drug marketplace. They were adopted without consideration of their effect in sentencing real defendants, without consideration of the effect on prison populations, and without study of their potential effectiveness in deterring drug trafficking or drug use. (House Report 99-845, pp. 11-12, pp. 16-17; P.L.99-570, sec. 1002, 21 U.S.C. 841(b)(1)(A) and (B), Oct. 27, 1986).
    Now those mandatory penalties are used to coerce plea bargains. They give prosecutors the power to say, "Here's your choice: I can charge you with this offense which carries a mandatory sentence. If you go to trial and you lose, you will get a mandatory 10 years without parole up to life imprisonment for a first offense (21 U.S.C. 841(b)(1)(A). (Congress specifically prohibited parole in these kinds of cases.) Alternatively, if you plead guilty to this lesser included offense which only carries a maximum of 20 years, cooperate with us by becoming an informant for us, we'll recommend a lower sentence in the guidelines such as five years or something like that (21 U.S.C. 841(b)(1)(C)."
    Very simply, faced with that kind of choice, a guilty pleas is coerced, and the fifth amendment protection against denial of due process of law is lost.
    Let's think of another example of the erosion of the fifth amendment protection. Due process in criminal cases includes the presumption of innocence, In re Winship (397 U.S. 358, 90 S.Ct. 1068 (1970)). However, in drug cases, Congress granted to the government the power to seize the property of suspects in advance of trial. Indeed, in advance of indictment (21 U.S.C. 853(e)).
    Another way in which due process is denied and the accused are unable to get a fair trial in some drug cases is by means of the "megatrial." Under the continuing criminal enterprise section of the Controlled Substances Act (21 U.S.C. 848) and RICO, the Racketeer Influenced and Corrupt Organizations Statute (18 U.S.C. 1961), there are monstrous trials, in which a score of defendants are tried together in dozens of counts of indictments alleging hundreds of different acts. Former Chief Judge Jack Weinstein of the Eastern District of New York in his opinion in U.S. v. Gallo spelled out how putting many defendants together in a "megatrial" undermines the presumption of innocence (National Law Journal, Dec. 7, 1988 at 13). If the government accuses twenty Italian-American men with being members of an organized crime family and requires them to sit together at the same table in a courtroom for half a year and presents a continuous stream of testimony about conversations between and about Italian surnamed citizens, what jury isn't going to believe that they are all members of the "Mafia?" Even when the evidence only applies to a few defendants, the innocent defendants are the victims of "spillover prejudice."
    Another megatrial, the "Pizza Connection" heroin trial (U.S. v. Badalamenti) in New York, lasted over 17 months. There were something like 21 defendants. The name of one defendant was not mentioned in the evidence or testimony until six months had elapsed. How does someone defend oneself in a megatrial? How can a jury process evidence in a complex trial that takes 17 months and sort the truth from the lies in dozens of counts? How can due process of law be said to exist in that situation? Yet these abuses are being tolerated in the prosecution of the war on drugs. The casualties include thousands of accused (including some who are innocent) with good defenses, who rightly feared that the risk of conviction coupled with mandatory penalties made a negotiated guilty plea look more attractive.
    The Sixth Amendment, among many specific rights, guarantees that "the accused shall enjoy the right ... to have the assistance of counsel for his defence." Yet even such a fundamental right is under attack by the government and the courts in the course of the war on drugs. In U.S. v. Morrison (449 U.S. 361 (1981)), Drug Enforcement Administration special agents knowingly met with the defendant, without counsel being present, to denigrate counsel's ability and threaten conviction, thus invading and undermining the lawyer-client relationship. Yet the Supreme Court said a sixth amendment violation could not be established without a "showing of prejudice" to the outcome (in effect requiring the defendant to lose)—thus weakening the protection of an individual's right to counsel.
    Congress has also joined the assault on the right to counsel. It gave prosecutors the power to seize the fees of the attorneys who represent the accused in drug cases. Justice Blackmun in describing this law said "Had it been Congress' express aim to undermine the adversary system as we know it, it could hardly have found a better engine of destruction than attorney's-fee forfeiture." Caplin & Drysdale, Chartered v. U.S. (dissenting opinion, 109 S.Ct. 2667, 2674 (1989)).
    In order to seize those fees, the government has begun to issue subpoenas to defense attorneys about their fees. This forces the defense attorney to become a witness in the government's forfeiture case, and forces the attorney to withdraw as counsel. This has been found to give the government the ability to eliminate highly competent counsel from trying certain cases.
    Another frightening example is that the government is demanding and attempting to force attorneys to provide it with evidence against their clients in circumstances rationalized by the war on drugs, but which involve all types of cases.
    This is the background: under the Currency and Foreign Transaction Reporting Act of 1970 (also known as the Bank Secrecy Act, 31 U.S.C. 5311 et seq.), if you went to a bank and made a $10,000 or larger cash transaction, the bank had to report that transaction to the Treasury Department. But if you bought a large ticket item like a car and paid cash, that did not have to be reported to Treasury. Now the Internal Revenue Code of 1986 (26 U.S.C. 6050I) requires all such cash transactions to be reported to IRS. It enables the government to get intelligence about people who buy a Mercedes-Benz with $55,000 in cash. Then the government specifically applied this reporting requirement to criminal defense lawyers. The special tax return under this section requires extensive detailing of who the customer is and the nature of the transaction. Look at how this works for lawyers and their prospective clients.
    Let's assume that you believe that you may be under surveillance or investigation by the government. You keep hearing mysterious clicks on your telephone, and you think you are being followed. You go to a famous criminal defense attorney for advice and possible representation, and she wants $10,000, by no means an unheard of fee. You borrow a few thousands dollars from three or four close friends and relatives, you pawn your stereo, and pay the attorney the $10,000 in cash you've collected. The attorney however sends the required form to the Internal Revenue Service about you. You haven't been indicted. You don't even know if you're being investigated. Your attorney sends government investigators a form saying, "My name is Mary Smith, famous criminal defense lawyer. I've just been retained by Mr. Jones, who paid me $10,000 in cash to represent him."
    Does anybody doubt that lights and bells will go off at the IRS when that report comes in? Of course they will. If there is no investigation pending on Mr. Jones, IRS or another Federal agency will put an agent on him right away. The Anti-Drug Abuse Act of 1988 (sec. 7601(b)) created a major exception to the usual rule of confidentiality of income tax information to permit the return filed under 26 U.S.C. 6050I to be turned over to any Federal law enforcement agency (26 U.S.C. 6103(i)(8)). How can the traditional protection of counsel of choice and the right to have counsel continue to exist if counsel are put in the position of becoming informants against their own clients?
    The Washington Post reported on November 15, 1989, that nine hundred letters had been sent to criminal defense lawyers around the country by IRS saying, "We want more information about your clients." Quite justifiably, criminal defense lawyers are in an uproar—but so should everyone who values the Sixth Amendment right to counsel.
    The war on drugs has also become the pretext for an assault on the criminal defense bar itself. Sentencing of Federal defendants is pursuant to guidelines promulgated by the U.S. Sentencing Commission, but a judge may impose a sentence lower than the stated guidelines by stating the reasons. However, a court can impose a sentence below a statutory mandatory minimum sentence (which Congress has created almost exclusively for drug cases) only upon the motion of the prosecutor that the defendant provided "substantial assistance in the investigation or prosecution of another person who has committed an offense." (18 U.S.C. 3553 (e)).
    Consider the temptation upon the defendant awaiting sentence in such a drug case to find somebody, anybody, who they can inform against, in order to induce the prosecutor to move for a sentence reduction below the mandatory 5, 10 or 20 years. In fact, many defendants are secretly encouraged by the government to attempt to incriminate their own defense counsel.
    The Seventh Amendment guarantees that "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." If you think about it a second, this right is essential for protecting other rights. If you want to bring a Federal civil rights case, for example, you have a right to a jury trial under the Seventh Amendment. If you are the victim of an environmental hazard, or product liability, or any kind of case in which you have been harmed, you have a guaranteed opportunity to sue.
    The Sixth Amendment guarantees that criminal trials must be "speedy," consequently they have priority over almost every other matter. Recently a Federal Magistrate in Los Angeles told me that in the United States District Court for the Central District of California, the volume of drug cases is so great the judges are concerned that soon they will be unable to try any civil cases. The number of attorneys in the U.S. Attorney's criminal division has just been doubled which promises a new influx of drug cases, but few new judgeships are being created. The Supreme Court of Vermont declared a six month moratorium on all civil jury trials. (Administrative Directive #17, "Temporary Postponement of Civil Jury Trials." January Term, 1990. Signed by all 5 justices on January 11, 1990, effective January 22, 1990. All civil jury trials for which jurors have not been drawn are postponed until after July 1, 1990. The moratorium was amended on March 28, 1990 when it appeared that the legislature would appropriate additional funds.) Many other federal and State courts are in a similar bind.
    How can your right to a civil jury trial—any kind of civil litigation—be maintained if the docket is jammed with drug cases? Obviously, that right is lost.
    The Eighth Amendment guarantees that "Excessive bail shall not be required,...nor cruel and unusual punishments inflicted." In 1984, in the Comprehensive Bail Reform Act, the Congress said that in most felonious drug cases (see 21 U.S.C. 841(b)), there is a rebuttable presumption that defendants are dangerous to the community and can be held without bail (18 U.S.C. 3142(e)). Those provisions are being used throughout the federal court system to detain accused persons before trial. This undermines their ability to work on their defense, to assist their counsel and to obtain a fair trial.
    Regarding the prohibition against cruel and unusual punishment: The Supreme Court has struck down, as cruel and unusual punishment, the death penalty for crimes that do not involve an intent to kill (Coker v. Georgia, (433 U.S. 584, 1977, rape); Enmund v. Florida (458 U.S. 782, 1982, co-defendant in a robbery and murder); Cabana v. Bullock, (474 U.S. 376, 1986, instructions to jury require finding an intent to commit murder).; cf. Tison v. Arizona (481 U.S. 137, 1987).
    However, on June 28, 1990 the Senate, by a 66 to 32 vote, adopted the D'Amato amendment to S. 1970 providing for the death penalty for a person convicted of any drug violation committed as part of a large scale continuing criminal enterprise (21 U.S.C. 848(b) and (c)(1) (involving for example 30,000 kilograms of marijuana, or only 1.5 kilograms of cocaine base, 300 grams of LSD, 30 kilograms of heroin, etc.), even where no homicide has been committed. While these are significant quantities, by no means are they earth-shaking quantities. And considering the purity of the drug is not considered, a mid-level operative may be chargeable with a capital offense. When it comes to fighting the war on drugs, the Senate is prepared to inflict punishments the Supreme Court has held are cruel and unusual. Only the presence of controversial amendments to ban semi-automatic assault weapons and a provision in the House crime bill to allow the introduction of evidence of racial disparity in the imposition of the death penalty, combined with the exhaustion of Congress in the October 1990 budget deadlock, resulted in the elimination of these death penalty provisions in the enacted legislation (S.3266).
    Unless the political climate is forced to change, it is only a matter of time before the death penalty for these types of offenses will be imposed. (N.B., In 1994 Congress did enact these death penalties where no killing was involved. ("Federal Death Penalty Act of 1994 which was enacted as title VI of the "Violent Crime Control and Law Enforcement Act of 1994," P.L. 103-322, Sept. 13, 1994 (known popularly as the 1994 Crime Bill), sec. 60002, 18 U.S.C. 3591(b)(1)).
    (Parenthetically, the U.S. Supreme Court heard oral argument on November 5, 1990 in Harmelin v. Michigan (No. 89-7272), on the question of whether the Michigan law requiring a sentence of mandatory life in prison without possibility of parole for the simple possession of more than 650 grams of cocaine constitutes cruel and unusual punishment. The only other offenses in Michigan which carry the same sentence are first degree murder, as well as possession of cocaine with intent to deliver, and distribution of cocaine. N.B. In 1991, the U.S. Supreme Court upheld the conviction, Harmelin v. Michigan, 501 U.S. 957 (1991) in a five to four decision. The court was actually even more divided. The opinion by Justice Scalia upholding the constitutionality of the sentence had the support of one other justice. The other opinion, by Justice Kennedy, upholding the sentence had the support of two other justices. Kennedy emphasized "the pernicious effects of the drug epidemic" (501 U.S. 103). A dissenting opinion by Justice White was joined by three other justices. See Volume 40, number 2, Villanova Law Review, "Symposium--The Sentencing Controversy: Punishment and Policy in the War Against Drugs, p. 301-427 (1995), in particular, "Sentencing Drug Offenders: The Incarceration Addiction" by Hon. Margaret P. Spencer, 40 Vill. L.Rev. 335-381, and "The Sentencing Boomerang: Drug Prohibition Politics and Reform" by Eric E. Sterling 40 Vill. L.Rev. 383-427.)
    Let me skip the Ninth and Tenth Amendments for a moment. The Thirteenth Amendment prohibits slavery and involuntary servitude, and the Fourteenth Amendment, guarantees equal protection of the laws. Those amendments have been read to prohibit government behavior which continues the badges of slavery—the treatment of African American citizens as second class citizens (See City of Memphis v. Greene, 451 U.S. 100, 126 (1981). When the police get the license to crack down on suspects as part of the war on drugs, in what communities do they stop people without any cause whatsoever? In what communities do the drag nets take place? You know the answer. Overwhelmingly, it is in minority communities. The Los Angeles Times ("Blacks Feel Brunt of Drug War", April 22, 1990, p.1) has shown that this is the case throughout the nation.
    Consider the National High School Senior Survey of the National Institute on Drug Abuse shows white youth use drugs at higher rates than black youth. However, the U.S. Office of Juvenile Justice and Delinquency Prevention reported that minority youth detained for drug offenses increased by 71 percent between 1983 and 1985. The rate of detention of white youth was stable. This is typical of how the burden of enforcement of the drug laws is inflicted on Blacks, Hispanics and Native Americans. Even though many more pregnant white women use cocaine than pregnant Black women, 80% of all of the arrests of women for endangering their fetus or delivering cocaine to their fetus are of Black women.
    The spirit of the 13th and 14th Amendments is violated everyday because the police are carrying out the war on drugs much more heavy handedly in communities of color. Equal protection of the law is being denied.
    Returning to the Bill of Rights. The Ninth Amendment provides that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." What are those other rights? Those are every other right. (See _The Rights Retained by The People: The History and Meaning of the Ninth Amendment_, Edited by Randy E. Barnett, George Mason University Press, (1989)).
    Now, when we think about rights, let's ask, "where do rights come from?" Do our rights come from Constitutional amendments? Are those our only rights? Or does the existence of our rights precede the First Amendment? Wasn't it the Declaration of Independence said that "we hold these truths to be self evident" —that we are "endowed by our Creator with certain unalienable rights?"
    Those rights don't flow from Congress. Uncle Sam doesn't give us our rights. We had our rights before the government was created.
    Consider the right to vote. The Fifteenth and Nineteenth Amendments to the Constitution say that the right to vote shall not be abridged on account of race or on account of sex. Did those rights come into existence because white males suddenly thought it would be a neat idea to give those rights to the rest of us? Did those rights come into existence because Congress finally decided to vote for them? No. Those rights always existed. They were not recognized by the society. But those rights were always there. Was it Black Americans or women that changed in 1870 or 1920? No, society changed—it recognized that a right which existed, the exercise of which was being denied, must now be guaranteed. Society's recognition of our rights is slow, it evolves.
    I argue that there is a right to use drugs. Last night a few of you drank alcohol—a drug. Today, a few of you have used nicotine, a drug. We don't urine test people to prevent them from using nicotine. We don't lock up the nicotine dealers. Most of us have had caffeine today, a very powerful central nervous system stimulant. We drink it in very carefully measured dosages, usually in common six ounce ceramic cups or ubiquitous styrofoam cups. Coffee cups are drug paraphernalia. A wine glass, a beer bottle, they are drug paraphernalia. An ashtray is drug paraphernalia.
    We use drugs in our society legally and illegally to an enormous degree.
    Why are the drug laws violated by tens of millions of our fellow citizens? Because they intuitively know that they have a right to engage in conduct that gives them pleasurable sensations even though it is prohibited—that those laws are unjust.
    Many of us in this audience, probably a majority, recognize a woman's right to control her reproductive freedom, to control her reproductive tissues, to control her womb. How is the right of all us to control our brains any less? Don't we have a right to control our cerebral tissue?
    To say that exercise of personal control over something so intrinsically personal as one's brain and central nervous system is not a right reserved under the Ninth Amendment means that the Ninth Amendment is almost meaningless.
    The Tenth Amendment says that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."
    The powers not delegated to the United States by the Constitution are reserved to the people. Where is the power in Article I, Section 8 of the Constitution that allows Congress to say, "We declare that your brain is off limits to you. You cannot use those cells in your brain that opium can affect, or that marijuana stimulates. Your brain is not really yours to control. The space between your ears—that's not really yours to control. We're the Congress. That's our space. You are prohibited from using your brain in unapproved ways." Is this a power that the Congress has? If so, where did it get it and when?
    Let's think about the First amendment broadly for a moment, and think about the policy that underlies the First Amendment. Ultimately, the First amendment is designed to guarantee our right to make up our minds. ("Those who won our independence believed that the final end of the State was to make men free to develop their faculties . . . . They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. . . ." Whitney v. California, 274 U.S. 357 (1927) (concurring opinion of Justice Brandeis, joined by Justice Holmes, 274 U.S. at 375). Brandeis defended the "freedom to think as you will and to speak as you think" as "indispensable to the discovery and spread of political truth. . .." (274 U.S. at 375).)
    How do our minds work? As you hear me speaking or if you read this, there are biochemical changes taking place in your brain. That's what's happening. Your brain is changing chemically. If you remember what I say or wrote, your brain has been permanently changed.
    In fact, what I'm saying is more dangerous than any drug you can take—much more dangerous. You might get angry at your members of Congress for deliberately or carelessly embracing a policy that systematically degrades your hard won freedoms and liberties. You might protest or take action and challenge the government. Even though what I'm saying is very dangerous because it's affecting your brain, and affects your ability to make up your mind about drug laws, what I'm saying is protected by the First Amendment.
    Do you have a right to listen or a right to read? Even though the First Amendment doesn't explicitly say "the freedom to listen shall not be abridged", isn't it obvious that you have a right to listen. If so, in material terms you have a right to chose to have your brain changed by what you want to listen to or what you read.
    Two centuries ago the King of England did not try to prevent Americans from directly using their brains. He did what he could do, which was to punish seditious speech and treasonous writings —things which profoundly influenced the minds of revolutionaries through the chemical changes they caused in their brains.
    Today, we know how the brain functions as a biological processor of chemicals. But since Congress has by law acted to intervene in your choice of brain-effecting chemicals, forbidding you from choosing certain drugs that millions of Americans desire, we must ask, "What is Congress' constitutional power for doing this?" Congress' legislative powers are set forth in Article I, Section 8 of the Constitution. The authority to ban drugs is no longer based on the power to tax, as it was from 1914 until 1970. Congress now asserts its power to forbid the use of drugs in the Controlled Substances Act (21 U.S.C 801; titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law 91-513.) is based on it's power to regulate interstate and foreign commerce. (United States v. Scales, 464 F.2d 371,373 (6th Cir. 1972); United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 1977), cert. denied, 435 U.S. 947 (1978).) Now what, pray tell, does that have to do with your brain?
    Congress recognized that if you grew marijuana in your backyard for your own use, there would be a very strong claim that such activities did not affect interstate or foreign commerce. Therefore Congress asserted that "local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce" and declared that it could not "feasibly differentiate" or "distinguish" purely intrastate activity with respect to drugs from the interstate or foreign commerce in drugs. Therefore, it claimed jurisdiction over drugs grown in your backyard, or always possessed by you in local, intrastate commerce. (21 U.S.C. 801(3),(4),(5),(6)).
    Now, is your brain interstate commerce? Is your bedroom interstate commerce?
    Consider the implications of this expansion of the Congressional power to regulate interstate commerce. Beginning in 1933, Congress at the urging of President Franklin Delano Roosevelt asserted an enormously expanded role in regulating interstate commerce. Conservatives considered it an almost revolutionary expansion. Only after a number of deaths and resignations, and the electoral sweep of 1936 was this enormously expanded claim of Federal power under the interstate commerce clause upheld by the Supreme Court (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)).
    We therefore accepted the expansion of the power of Congress to regulate interstate commerce to the maximum. Even if an individual's act is trivial, that is irrelevant if it is a type of act, when cumulated with other similar acts, might reasonably be deemed by the Congress to have substantial national consequences. (See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung, 379 U.S. 294 (1964); Perez v. United States, 402 U.S. 146 (1971)).
    There was also created the theory that Congress could enact prohibitions to "protect" interstate commerce. The Fair Labor Standards Act of 1938 excluded from interstate commerce goods made in plants with did not meet Federal standards for wages and hours of employees. (This was upheld in United States v. Darby, 312 U.S. 100 (1941): "Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from [such] commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare..." (312 U.S. at 114).) In the 1960's Congress used the interstate commerce power to guarantee civil rights in interstate travel and accommodations. (e.g. Heart of Atlanta Motel, Inc, v. United States, 379 U.S. 241 (1964)).
    It is time to consider, where does interstate commerce end? I'm standing here in this conference center, a facility of interstate commerce. I'm carrying an airplane ticket to Washington. My pocket is full of credit cards, tools of interstate commerce. However, I spent the night here, I've had a beautiful hike, I've had a couple of meals here. Am I actually here in Colorado, or am I still in the limbo of interstate commerce? If I am still in interstate commerce now, when do I leave interstate commerce? Can I ever leave interstate commerce? (Notably, Justice Rehnquist suggested that "it would be a mistake to conclude that Congress' power to regulate pursuant to the Commerce Clause is unlimited. Some activities may be so private or local in nature that they simply may not be in commerce. Nor is it sufficient that the person or activity reached have some nexus with interstate commerce." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981) (concurring opinion at 310). Departing from the post New Deal line of cases he concluded, the commerce power "does not reach activity which merely 'affects' interstate commerce. There must be a showing that a regulated activity has a substantial effect on that commerce." 452 U.S. at 312. (Bold in the original, underlining added.) So far, no other justices have joined this argument.)
    But if I am in interstate commerce, what about those of you who have not left your home state to come to this conference. Are you in interstate commerce?
    If interstate commerce can constitutionally be claimed to be the basis for anything that Congress wants to regulate, what part of our lives is not regulatable by Congress? If Congress can use this power this broadly in the regulation of our brains, then the Federal government is omnipotent and the notion of constitutional checks and balances is non-existent.
    If our brain is regulatable as interstate commerce, then certainly our wombs and genitals are too, aren't they, and our blood, our heart, our lips, our fingers, our eyes, and our ears? Is there any part of us that is not in interstate commerce?
    I believe that at some point the tissues inside our skin must be totally outside interstate commerce, or else Congress has unlimited power to tell us to do whatever it wants us to do.
    It is this, it seems to me, that is the most dangerous heart of the war on drugs and which strips the Ninth and Tenth Amendments of their meaning. Essentially the legal basis for the war on drugs depends upon the assumption of total power by the Congress and the Federal Government to regulate the most intimate aspects of our lives, the very dreams that we have. And the propaganda arm of the war on drugs has been successful persuading us to unwittingly surrender this vital power over ourselves to the Federal government. Indeed the propaganda of the urgency of the war on drugs has been so successful, many of our fellow citizens consciously believe we must surrender ourselves for the good of the state.
    Seen in this light, the war on drugs is the corner stone of an as yet unbuilt edifice of totalitarianism.
    Challenging the war on drugs is the most important issue facing civil liberties and the preservation of the Bill of Rights.
    You are lawyers. You know that aside from the questions of due process and constitutionally required criminal procedure, the criminal justice system is going down the tubes. The American Bar Association issued a special report, Criminal Justice in Crisis, which found the criminal justice system is being overwhelmed with drug cases. (CRIMINAL JUSTICE IN CRISIS, American Bar Association, Section on Criminal Justice, Special Committee on Criminal Justice in a Free Society, 1988, p.6.) It functions as an assembly line. No longer does individualized justice takes place. The attorneys - - prosecutors, defense counsel, and judges—are mere mechanics that keep the machine of arrest and imprisonment functioning.
    I won't discuss today the many serious costs our society is suffering from undertaking the prohibition approach to the problem of drugs—the increased crime, the spread of disease, the economic price of enriching organized crime by $100 billion per year. I won't analyze our national drug control strategy to explain how it cannot succeed in stopping the cultivation and shipment of drugs into the United States. Someone who might be indifferent to the hits taken by the Bill of Rights, should be alarmed by the problems caused our nation by drug prohibition because they effect everyone—in their pocketbook, in their personal safety, in the availability of quality health care.
    The organized bar, such as the Colorado Bar Association, is one of the institutions in the society that is sensitive to the Bill of Rights implications of the war on drugs. Next year will be the bicentennial of the ratification of the Bill of Rights. Many bar associations are planning programs to commemorate the Bill of Rights. Now is the time for bar associations to begin to educate the public about the jeopardy our heritage of liberty faces from the war on drugs. If the bar fails to do this, who will do it? If no one does it, then surely the celebration of the bicentennial of the Bill of Rights on December 15, 1991 will be a hollow exercise.
    It should be obvious that all of these comments do not deny that drug abuse is not a terribly tragic situation. As is alcoholism. As are 300,000 annual deaths from tobacco and cigarette addiction. Those are terrible things too. But we are not going to solve any of these problems by allowing the war on drugs to make our Bill of Rights into a shattered remnant of the vital shield it once was.

Eric E. Sterling, President,
The Criminal Justice Policy Foundation
1899 L Street, NW, Suite 500 Washington, DC 20036-3804
202-835-9075 Fax--202-833-8561
Email: esterling@igc.org

http://www.cjpf.org (The Criminal Justice Policy Foundation)
http://www.ndsn.org (National Drug Strategy Network)