[u][b]Drug War Shrinking Bill of Rights[/b][/u]
Thursday, January 27, 2005
By Radley Balko
This week, the U.S. Supreme Court ruled that if you're pulled over by the police for speeding or, say, not wearing your seatbelt, they may bring out drug-sniffing dogs to investigate your car without violating the Fourth Amendment.
On the Volokh Conspiracy blog, Orin Kerr observes that Justice John Paul Stevens (search), writing for the majority, indicated that the Fourth Amendment protects not against violations of privacy or invasiveness, but against violation of property rights. Since one can't have property rights for illicit drugs, a search can't violate the Fourth Amendment.
It's a troubling precedent. It's hard to see how any police search would violate any rights under Justice Stevens' ruling, so long as the search turned up something illegal. That sort of undermines what the Fourth Amendment (search) is all about.
That case is just the latest in a number of court rulings and pieces of legislation that have been chipping away at the criminal justice rights of substance-abuse suspects. Ours is quickly becoming a two-tiered criminal justice system, one in which there are one set of criminal protections for drug and alcohol defendants, and a broader set of protections for everyone else.
Last month in Virginia, pain physician Dr. William Hurwitz (search) was convicted on dozens of counts of drug distribution. Prosecutors and the foreman of the jury that convicted him conceded that Hurwitz didn't knowingly participate in a drug trade, but because the pain medication he prescribed made it to the black market, he was nevertheless found guilty. He faces life in prison. Proving intent — as is required to secure a conviction in nearly every other crime — apparently wasn't necessary.
The drug war has been eating at the Bill of Rights since its inception. Asset forfeiture laws, for example, allow law enforcement to seize the assets of suspected drug dealers before they're ever convicted of a crime. Even if the defendant is acquitted or the charges are dropped, the mere presence of an illicit substance in a car or home can mean the loss of the property, on the bizarre, novel legal principle that property can be guilty of a crime.
Thanks to mandatory minimum sentencing laws, a judge in Utah recently had no choice but to sentence a first-time marijuana dealer to 55 years in prison (he had a pistol strapped to his ankle during the one-time deal, though he never brandished it). Frustrated but hamstrung by drug laws, the judge in the case noted that just hours earlier, he had sentenced a convicted murderer to just 22 years for beating an elderly woman to death with a log. Courts have carved out a "drug war exemption" in the Bill of Rights for multiple search and seizure scenarios, privacy, wiretapping, opening your mail, highway profiling, and posse comitatus — the forbidden use of the U.S. military for domestic policing.
The other area where criminal protections are withering in the face of substance-abuse hysteria is in Driving Under the Influence or Driving While Intoxicated cases.
The most notable example is the 1990 case of Michigan vs. Sitz (search), where the Supreme Court ruled that the problem of drunk driving was so pervasive, the Court could allow "random sobriety checkpoints" in which cops stop motorists without probable cause and give them breath tests, a practice that would otherwise again violate the Fourth Amendment.
The Court has since ruled that the urgency of the drunken driving problem gives states the option to legislate away a motorist's Sixth Amendment (search) right to a jury trial and his Fifth Amendment (search) right against self-incrimination. In 2002, the Supreme Court of Wisconsin ruled that police officers could forcibly extract blood from anyone suspected of drunk driving. Other courts have ruled that prosecutors aren't obligated to provide defendants with blood or breath test samples for independent testing, even though both could be done relatively easily.
State legislatures have pounced on these rulings. The state of Washington just passed two laws remarkable in their disdain for everything our criminal justice system is supposed to represent. The first instructs juries in drunk driving cases to consider the evidence "in a light most favorable to the prosecution," an evidentiary standard that's unheard of anywhere else in criminal law. The second mandates that breath test evidence be admissible, no matter what — even if the defense can prove that the breath test machine was broken, or jiggered toward higher readings.
Last year, Pennsylvanian Keith Emerich had his license revoked by state authorities after he revealed to his doctor during an emergency room visit that he sometimes drinks a six-pack of beer per day. His doctor reported him. Emerich wasn't accused or charged with drunk driving. In a bizarre twist on the principle of "presumption of innocence," Emerich must now prove to the state that he doesn't drive after drinking before he can get his license back.
More and more states are taking advantage of the Supreme Court's granted exemption to a right to a jury trial for DUI-DWI suspects, particularly in states where judges are elected, not appointed. That, of course, is because elected judges deemed insufficiently harsh on such defendants can have their "leniency" used against them when it comes time for re-election.
Though no such bill has yet to be signed into law, several state legislatures have also now considered bills that would mandate ignition interlock devices in every car sold in the state. New Mexico's version of the law would require all drivers to blow into a tube before starting their car, then again every ten minutes while driving. Drivers over the legal limit would not be able to start their cars or, if already on the road, given a window of time to pull over. Onboard computer systems would keep data on each test, which service centers would download once a month or so and send to law enforcement officials for evaluation.
The problem, as Thomas Jefferson famously said, is that the natural process of things is for liberty to yield and for government to gain ground. It would take a rare and brave politician to stand up and say that we need to roll back or reconsider our drug laws, or that it's unfair to give accused murderers or rapists more rights than we give DWI defendants. But that's exactly what needs to happen.
Radley Balko maintains a Weblog at: [url]www.TheAgitator.com[/url].[/b][/quote]
What is increasingly laughable is that people whio aren't involved with the criminal justice system have this idea that they're locking up people for years for a joint.It may have been true in the 1970s, but no longer.
Nothing could be further from the truth. For a first time low level drug dealer to end up in a long-term jail sentence he must be a moron or have a moron as his attorney.
The next time a major marijuana dealer spends more than a few months in jail will be first. Tommy Chong found himsefl in the soup because of his own stupidity. there comes a point that if you hold yourself up as a target forever like he did that some US Attorney in the hunt for a headline will hammer you. Which still seems like an extraordinary waste of federal budget in a time of terrorism.
In most states, unless you are a major distributor, it's a virtual certainty that you will be offered a drug treatment program in lieu of any jail sentence. In fact, it's likely that upon completion of such a program, you will have your criminalr ecord expunged. And that will be true even upon your second felony drug sale conviction.
The problem with the "war on drugs" now is that for everyone involved it's expensive and needlessly dangerous to use police and the courts to get low-level drug users-who are the bulk of retail street sellers of drugs-into rehab. There must be a more direct and cheaper way to do it. And to put undercover cops in danger to buy nickel bags to get such people into rehab is beyond retarded.
[quote][i]Originally posted by Bugg[/i]@Jan 27 2005, 01:27 PM
[b] What is increasingly laughable is that people whio aren't involved with the criminal justice system have this idea that they're locking up people for years for a joint.It may have been true in the 1970s, but no longer.
in the article the judge specifically referred to two cases - one in which he sentenced a guy buying weed to 55 years and another where he sentenced a guy who beat an elderly woman to death with a log 22 years
doesn't sound like this stuff stopped in the 70's - sounds like if anything it's getting worse. ..
The guy also had a gun on his ankle, which isn't your garden-variety hippie with a hydroponic garden in the basement nor a street level nickel bag rock slinger . For better or worse, we, by our representatives, have passed laws making anyone who uses a gun in the commission of [i]any crime [/i]a violent offense. We have decided such crimes should be treated more severly and worthy of more punishment. You also don't know what else the guy had on his rap sheet.
[quote][i]Originally posted by Bugg[/i]@Jan 27 2005, 01:49 PM
[b] The guy also had a gun on his ankle, which isn't your garden-variety hippie with a hydroponic garden in the basement nor a street level nickel bag rock slinger . For better or worse, we, by our representatives, have passed laws making anyone who uses a gun in the commission of [i]any crime [/i]a violent offense. We have decided such crimes should be treated more severly and worthy of more punishment. You also don't know what else the guy had on his rap sheet. [/b][/quote]
this is all true but the bottom line remains he got 30 more years in jail then the guy who beat a woman to death with a log.... that ain't right
[quote][i]Originally posted by Warfish[/i]@Jan 27 2005, 01:42 PM
[b] Why is Pot illegal? Specifically.
i don't buy into the war on drugs but the origins of these laws always interested me -
long story short it's about money - the original people who were being hurt by the spread of hemp crop were the newspaper makers in the 19th century - these guys made paper out of trees and were going to get killed in the market by similar organizations making paper out of hemp - to fight it they spread stories about how people smoking weed turn into axe murderers - all that "Reefer Madness" stuff
fast forward to the year 2005 in washington DC the biggest lobby AGAINST legalization of weed are the alcohol guys (liquor and beer lobbies) - these guys know that if weed became legal their business would go straight down the crapper... this viewpoint was given to me at length by one of my college buddies who used to work for Deageo.
interestingly enough the tobacco lobby is secretly pro-legalization as Phillip Morris and other large makers of cigarettes have planned for a long time how to mass produce, market and distribute weed cigarettes like they do tobacco cigarettes
my honest opinion is that it might take decades but before i die i will be able to walk down to the local gas station and buy a pack of Marlboro Spliffs - you can see the shifting belief system it's just a matter of time before people can unlearn everything that was drilled into them ...
As recently as the 1950s, US military personnel assigned to the Canal ZOne thought nothing of smoking pot like cigars.
One downside to legalization is that once you remove the legal sanction young people will try it. we will get more people using and eventually succumbing to addiction. And DWI laws are easy to enforce with breath analysis tests. The only real way to tell if someone is high is with tests of blood or urine. if you think DWI checkpoints are intrusive now, you have no idea how intrusive they might get in a legalized culture. Remember, driving is a privilege, not a right, and as such yopu have a lesser expectation of privacy than you would in your home, balanced against the safety of others.
Why would the liquor and beer industries go in the crapper if weed were legalized? What evidence is there? Weed has been de-criminalized in some states, what has happened to the beer and liquor industries in those states since that took effect?
Many of the laws against weed were written much later than the late 19th century, if my memory serves me correctly. In fact, many of our hysterical laws against certain types of drugs were spawned from the 60's, when things like mushrooms and LSD and weed were sort of lumped together - however, I haven't studied this, and this is juts my recollection, so I could very well be way off here.
But, in general, our laws for possession for most of these drugs are ridiculous, IMO.
A lot of times judges are restricted in the sentences they can mete out and minimum sentences are required. But your overall point is right - things don't make sense. I just don't think you can always blame the judges for it. If a law is bad, there isn't much they can do....