Is the Bill of Rights a Casualty of the War on Dr
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"IS THE BILL OF RIGHTS A CASUALTY OF THE WAR ON DRUGS?"
ERIC E. STERLING
President, The Criminal Justice Policy Foundation
2000 L St. N.W., Suite 702
Washington, D.C. 20036
Remarks prepared for
delivery to the
COLORADO BAR ASSOCIATION
92nd Annual Convention
September 14, 1990
(Revised, November 5, 1990)
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
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
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
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
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 (--U.S.--, 110 S.Ct. 1595, No. 88-1213,
April 17, 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
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
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
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
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
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 and
having 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© and 21 U.S.C.
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
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 (No. 86-
1879, March 21, 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
"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 the case reported in the article in USA Today,
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.
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
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
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
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 ©(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. (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.)
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 community 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
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.
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
Those rights don't flow from Congress. Uncle Sam doesn't give
us our rights. We had our rights before the government was
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
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
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
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
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
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
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
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
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
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.