Monday, January 24, 2005

Warnings Against Drug War Prove True Once Again

The U.S. Supreme Court today further eroded the rights of American citizens to be free of unreasonable searches. As reported by the Los Angeles Times ("Justices: Police Dog Searches Don't Invade Privacy") earlier today:

"The use of police dogs to sniff a car for drugs does not violate the privacy rights of a stopped motorist, the Supreme Court ruled today, even if the officers had no reason to suspect the car and its driver were carrying drugs.

"The high court's decision gives police broad, but not unlimited, authority to use canines to search for drugs or bombs — whether on the highways or in schools, at airports and office buildings.

"... in a 6-2 decision in Illinois vs. Caballes, the U.S. Supreme Court ruled the police may use drug-sniffing dogs so long as the officers have a reasonable basis for stopping a motorist or a pedestrian in the first place."

The money quote in the Court's decision (written by Justice John Paul Stevens) is this:

"... the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U. S., at 707—during a lawful traffic stop, generallydoes not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of re-spondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement."

In other words, all people who may possibly be suspects, even when no reason for suspicion is apparent, lack Fourth Amendment rights. This reminds me of former Attorney General Edwin Meese's notorious observation 20 years ago, "You don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect."

The Court's decision simply takes us one step closer to the day when every citizen is a suspect -- at that point, in fact, we will not just be suspects. We will be subjects.

In her dissent (joined by Justice David Souter, reaffirming his increasingly well-deserved reputation as the most nearly liberatarian of the nine justices), Justice Ruth Bader Ginsberg argues, first parenthetically citing her own previous dissent in another case:

"('Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.'). Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.

"The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots... Nor would motorists have constitutional groundsfor complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green."
Monday's decision comes just one day after publication in the Washington Times of an excellent article by former Reagan administration official Doug Bandow (now with the Cato Institute), which reviews two new books on the failure of the War on Drugs -- a failure that contributes to the diminution of human rights in the United States, in sharp contrast to the emphasis on both freedom and liberty given by President Bush in his second inaugural address last week.

Reviewing Bad Trip: How the War on Drugs Is Destroying America, by Joel Miller, and Drug War Crimes: The Consequences of Prohibition, by Jeffrey A. Miron, Bandow writes, as if in anticipation of the Supreme Court's ruling:

"Another casualty of the drug war is privacy. As Mr. Miller points out, the fact that drug abuse is a victimless (or, more accurately, self-victim) crime means that there is no complaining witness. It is hard to collect evidence against drug users without using searches, wiretaps, and snitches. Even so, winning convictions in drug cases isn't easy. Thus, the government has increasingly relied on property seizures, which demand a lower standard of proof, to punish presumed wrongdoers. Yet Mr. Miller finds that the toll among the innocent is very high."

Bandow, author of The Politics of Envy: Statism as Theology, concludes:

"There is little good news in the drug war. The government has militarized law enforcement and turned homes and entire neighborhoods into war zones. Locking up ever more people hasn't stopped the flow of drugs, which are available inside supposedly secure penitentiaries.

"Proposals for decriminalization or legalization seem radical. But the only hope may be to treat drugs as a moral, spiritual, and health problem rather than a legal one. Mr. Miller notes the importance of 'social controls' in limiting destructive behavior, which ultimate are more powerful than ill-enforced laws. America's tradition of liberty should put the burden of proof on supporters of the drug war. After all, concludes Mr. Miron, 'the goals of prohibition are questionable, the methods are unsound, and the results are deadly.'

"Mr. Miller and Mr. Miron have presented a powerful case against the drug war. Drug prohibition is making Americans neither safer nor better off."

I have addressed the drug war on many occasions in the past, in speeches, articles, and in TV and radio appearances. One of my most recent articles on the topic pointed out how the failure of the War on Drugs is so pervasive that it reaches into the nation's First Family. This article originally appeared in Florida's Bradenton Herald in September 2002; it was picked up and reprinted by the Media Awareness Project:


Could we find a more vivid illustration of the conspicuous failure and counterproductive nature of the War on Drugs than this?

Noelle Bush, daughter of Gov. Jeb Bush and niece of the president, was caught with crack cocaine hidden in her shoe at a drug rehabilitation facility, according to a Sept. 11 report in the Orlando Sentinel. Last July, she was sentenced to jail time for possessing forbidden prescription drugs at the same clinic.

Billions of dollars of investment in the drug war cannot keep illicit substances out of rehabilitation facilities. Nor, for that matter, can law enforcement authorities keep drugs out of prisons - despite concrete walls, steel bars, razor wire and armed guards.

Prison walls are so porous that "it is commonly assumed that well over half of the prison population regularly consumes some kind of drug, be it alcohol, cannabis, amphetamines or heroin," according to Nick Flynn, deputy director of the Prison Reform Trust. Los Angeles County Deputy Sheriff Arthur Solis gives a higher estimate: "Based on my experiences about 70 percent of inmates are in some way, shape, or form involved with drugs," he told Ad Infinitum magazine.

The metaphors are powerful. A daughter of the country's most powerful political family is ensnared in the politicians' own War on Drugs, yet her family fails to see the larger meaning of her predicament. It is easier to obtain hard drugs in jail than in a college dormitory, yet the government thinks it can keep drugs from crossing the 2,067-mile Mexican border or the 5,526 miles between us and Canada.

While families in poor neighborhoods bear the heaviest burdens of the drug war - turf wars among street gang members, endemic police corruption (Denzel Washington's Oscar-winning crooked cop in "Training Day" was a reflection of real life) and economic despondency - affluent and suburban families, including the Kennedys, Bushes and Rockefellers among us, have largely been spared the War on Drugs' collateral damage.

Jeb Bush, claiming the desire for family privacy, merely cloaks his own obtuseness by telling Florida journalists: "In this case, I'm not a governor - I'm a dad. And I just pray. That's all I can do," adding, "This is a private issue as it relates to my daughter, myself and my wife."

It is not private. It is a very public matter with very public ramifications.

The message of Noelle Bush's troubles is simple: We need to rethink the War on Drugs, starting by following the example of Canada, Britain, Portugal and the Netherlands (among other countries) and decriminalizing marijuana. An initiative on the ballot this November in Nevada will show us what voters - not politicians - really think about this proposal. If past experience is any guide, the voters will send a resounding signal to their legislators that drug laws must be reformed, and the law should be rewritten to reflect reason rather than raw emotion, logic and facts rather than propaganda.

Arrest, interdiction and punishment have all proven useless against the laws of economics and human nature. We should have learned the lesson during alcohol Prohibition, which in the 1920s created markets for organized crime, drove up the murder rate and laid the foundations for later criminal enterprises in gambling, prostitution and drugs. Banning a desired product or service always - always - generates incentives to providers who are willing to ignore the law to make a profit. Disputes among black-market entrepreneurs are settled with gunshots rather than with lawsuits. And the losers are all of us.

The War on Drugs casts a wide and dangerous net. Our constitutional liberties are eroded by law enforcement agencies eager to skirt the protections of the Bill of Rights so they can "score" another big arrest. Anyone with a bank account is saddled with invasive regulations that discard financial privacy to prevent "money laundering." Profits from the international trade in cocaine and heroin - profits multiplied by the drugs' mere illegality - finance terrorists on five continents.

The time has come to say no to the War on Drugs.

Gov. Bush and President Bush should listen attentively to their fellow Republican, Gov. Gary Johnson of New Mexico, who told his state's legislature last year that "we need to reform our drug policies." Johnson explained: "We need policies that reflect what we know about drug addition rather than policies that seek to punish instead of help. We need a humanitarian approach. The days of the 'drug war' waged against our people should come to an end."

What did I say there? "The time has come to say no to the War on Drugs." No, that's wrong: The time has long passed to say no to the War on Drugs.


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