A Substantive Due Process Challenge to the War on Drugs
by Warren Redlich
http://www.redlichlaw.com/crim/substantive-due-process-drug-war.pdf
We cannot go into tomorrow with the same formulas that are failing today.
We
must not blindly add to the body count and the terrible cost of the War on Drugs,
only to learn from an
other Robert McNamara 30 years from now that what we've
been doing is, "wrong, terribly wrong."
-
Walter Cronkite, 1995
ABSTRACT
Since the early 1970s, the United States has experienced a massive increase in the
incarceration of drug offenders.
This so
-
called War on Drugs is widely considered
a failure by critics from a variety of ideologies and backgrounds. Litigants have
challenged drug war policies from many different angles. Their efforts have been
largely unsuccessful and the drug war conti
nues unabated. Law review articles
have been home to a decades
-
long discussion regarding whether substantive due
process can limit the legislative power to determine what should be a crime.
Substantive due process doctrine requires that government policy be narrowly
tailored to advance compelling governmental interests if fundamental rights are
infringed.
Freedom from incarceration is a fundamental right.
A factual review
shows that the drug war's goals are not being achieved. Since governmental
interests are not being advanced, the incarceration of drug offenders cannot meet
the Court's requirement of narrow tailoring.
The problems caused by the drug war
amount to a genuine parade of horribles, sufficient to overcome the Supreme
Court’s reluctance to expand
the concept of substantive due process. At the same
time, the Court’s reluctance can serve to limit the reach of substantive due process
and thus calm fears of judicial activism
TABLE OF CONTENTS
I. Introduction
A. The Drug War
B. Substantive Due Process
C. The Police Power and a Substantive Criminal Law
II. Substantive Due Process Analysis of the Incarceration of Drug Offenders
A. Framework
B. The Fundamental Liberty Interest: Freedom from Incarceration
C. Identifying the State's Interests
D. Defining Narrow Tailoring
E. Advancing Governmental Interest
F. Alternative Means
G. The Incarceration of Drug Offenders is Not Narrowly Tailored
III. The Court's Reluctance
A. Background
B. The Drug War’s Genuine“Parade of Horribles”
C. Preserving Judicial Restraint
IV. Conclusion
INTRODUCTION
A. The Drug War
Walter Cronkite is not alone. The “War on Drugs” has been criticized for nearly as long
as the war metaphor has been used.
3
Opponents come from left,
4
right
5
and center.
6
Complaints
fly
not only from defense lawyers,
7
but also from police,
8
prosecutors
9
and judges.
10
Official
studies have put prohibitionist drug policies through the mill for more than a century.
11
Of course
the drug war has been attacked,
12
defended
13
and discussed
14
in law review and journal articles.
Litigants have fought against drug war policies in a number of different ways.
Constitutional challenges have been raised under the First
15
, Fourth
16
, Fifth
17
, Sixth
18
, and
Eighth
19
Amendments. Questions have also been raised regarding the Second
20
, Seventh
21
,
Ninth
22
and Tenth
23
Amendments as well. The drug war has been challenged on various grounds
regarding the use of marijuana for medical purposes.
24
Federal drug prohibition policies were
also litigated early in the 20
th
Century.
25
Similar questions were raised about the prohibition of
alcohol.
26
B. Substantive Due Process
Substantive due process doctrine arises out of the Due Process clauses of the Fifth
27
and
Fourteenth
28
amendments to the United States Constitution. This notion, that
the due process
clauses place substantive limits on governmental infringement of fundamental rights, dates back
to late in the 19
th
century in cases such as Allgeyer v. State of Louisiana:
To deprive the citizen of such a right as herein described without
due process of
law is illegal. Such a statute as this in question is not due process of law, because
it prohibits an act which under the federal constitution the defendants had a right
to perform. This does not interfere in any way with the acknowledged ri
ght of the
state to enact such legislation in the legitimate exercise of its police or other
powers as to it may seem proper. In the exercise of such right, however, care must
be taken not to infringe upon those other rights of the citizen which are protec
ted
by the federal constitution.
29
The doctrine has a rich history and has been considered in a variety of areas,
30
including criminal
matters.
31
Supreme Court decisions invoking substantive due process have been perhaps the most
controversial of all. Lochne
r v. New York
32
led to “the fabled ‘switch in time that saved nine.’”
33
After thirty years there has yet to be a decision as controversial as Roe v. Wade.
34
Rumors of the
doctrine’s death have been so frequently exaggerated
35
that it must have feline origins.
This
paper suggests a substantive due process challenge to the War on Drugs
36
, and in particular to the
legislative
37
decision to incarcerate drug offenders.
38
The Supreme Court has “always been reluctant to expand the concept of substantive due
process.”
39
The harsh reality of the drug war overcomes that reluctance. Meanwhile, the
application of substantive due process can be limited to the drug war without expanding it to
other fields.
C. The Police Power and a Substantive Criminal Law
In 1851, Chief Justice Shaw of the Massachusetts Supreme Court discussed “the police
power”:
Rights of property, like all other social and conventional rights, are subject to
such reasonable limitations in their enjoyment, as shall prevent them from being
injurious, and to su
ch reasonable restraints and regulations established by law, as
the legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient. ... The power we allude to is ...
the police power, the powe
r vested in the legislature by the constitution, to make,
ordain and establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the constitution, as
they shall judge to be for the good
and welfare of the commonwealth, and of the
subjects of the same.
40
It is the police power that allows legislatures to define what is a crime.
41
The notion of a
substantive criminal law, imposing limits on that power, can be somewhat controversial.
42
Law
reviews have been home to a decades
-
long discussion over this very issue, beginning with Henry
Hart and Herbert Packer in the late 1950s and 1960s.
43
Some authors have come very close to the approach suggested in this paper. Most notable
in this regard is a
brilliant 1994 article by Professor Sherry F. Colb that has been almost
completely overlooked.
44
This paper will mirror Colb’s application of substantive due process to
the fundamental right to liberty from confinement but with a different approach. While Colb’s
article is a general discussion of substantive due process and incarceration, this paper focuses on
the drug war.
Colb does address the drug war briefly, contending that the government’s interests
are not compelling. Unlike Colb, I concede for the sake of argument that drug policy may
involve compelling interests and concentrate instead on a factual analysis of the narrow tailoring
question. Further, this article shows why the drug war overcomes the Court’s reluctance and
discusses how that reluctance
can nevertheless preserve judicial restraint.
In the Pennsylvania Law Review some 15 years before Colb, Professor Thomas Hindes
seemed to have Colb’s argument on the tip of his pen:
If a statute must be predicated upon a compelling interest, it is virtually certain to
be invalidated, but if only a rational relationship between means and ends need be
shown, the individual bringing the challenge will rarely be able to overcome the
presumption of constitutionality.
In the context of the specific types of criminal statutes discussed earlier,
proscription of marijuana sale and possession, sodomy, and obscenity, the present
[1970s] Court would probably not find any fundamental rights infringed.
Presumably no fundamental right exists to use marijuana or view dirty movies.
This type of approach, however, bypasses the really crucial issue. Courts are not
being asked to decide whether the Constitution implicitly says anything about
smoking marijuana; they are being asked if there is any good reason for putting
someone in jail for smoking marijuana.
No principled evaluation of these cases can avoid reference to the broader social
purpose of a criminal prosecution.
45
Hindes apparently did not see the argument that freedom from incarceration is a fundamental
right. Professor Claire Finkelstein, writing in the 2000 California Law Review, also came close
in comparing substantive due process in the criminal arena to the demise of Lochner:
Rejecting oversight of economic regulation on the basis of a generic due process
right
to liberty does not entail the rejection of substantive federal oversight of
legislation infringing the right to be free from bodily restraint.
46
She came close again as she laid a framework for substantive due process in the criminal law:
The Constitution explicitly equips citizens with certain rights against their
governments, such as the right to freedom of speech, and where legislation
infringes one of these rights, federal judges may invalidate the legislation to
protect the right if the state cannot
justify the measure by reference to a
"compelling state interest."
But outside the area of fundamental rights the answer
does not come easily. While the tradition of substantive due process provides the
most likely source of these restrictions, due proces
s positivism suggest that a
legislature has unbounded discretion to decide what to criminalize and how to do
so, as long as the statute does not infringe a fundamental right. Large portions of
our constitutional jurisprudence of liberty, however, belie thi
s suggestion. And if
there is a general due process interest in liberty, then at least some of the
justifications a state could offer for the use of the criminal sanction would fail to
override the background right citizens have to be free from punishment.
4
Finkelstein characterized the right to be free from punishment as a "background right." She did
not address freedom from incarceration itself as a fundamental right, nor mention Colb’s article.
If freedom from incarceration is a fundamental right, then
substantive due process could subject
any incarcerative criminal statute to strict scrutiny as Colb suggests.
II. SUBSTANTIVE DUE PROCESS ANALYSIS OF THE INCARCERATION OF DRUG OFFENDERS
A. Framework
In Washington v. Glucksberg, Chief Justice Rehnquist
described the framework for
substantive due process analysis:
Our established method of substantive
-
due
-
process analysis has two primary
features: First, we have regularly observed that the Due Process Clause specially
protects those fundamental rights an
d liberties which are, objectively, "deeply
rooted in this Nation's history and tradition," and "implicit in the concept of
ordered liberty," such that "neither liberty nor justice would exist if they were
sacrificed.” Second, we have required in substanti
ve
-
due
-
process cases a "careful
description" of the asserted fundamental liberty interest. Our Nation's history,
legal traditions, and practices thus provide the crucial "guideposts for responsible
decisionmaking," that direct and restrain our exposition o
f the Due Process
Clause. As we stated recently in Flores, the Fourteenth Amendment "forbids the
government to infringe . . . 'fundamental' liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve
a
compelling state interest."
48
Applying this method, one must first examine freedom from incarceration to determine if it is a
fundamental right. If so, government policies that require the incarceration of offenders,
including drug offenders, must serve
compelling interests and be narrowly tailored to achieve
them.
49
This article assumes for the sake of argument that drug problems give rise to compelling
state interests.
50
It then reviews the interests asserted by the government in its pursuit of its drug
w
ar policies and the results of those policies to determine whether the policy of incarcerating
drug offenders is narrowly tailored to those asserted interests.
51
B. The Fundamental Liberty Interest: Freedom from Incarceration
Federal and state laws subjec
t drug offenders to incarceration.
52
Incarceration is a
tremendous deprivation of liberty
53
that triggers the protections of the Due Process Clause.
54
The
Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago
County DSS for example, the court held:
[I]t is the State's affirmative act of restraining the individual's freedom to act on
his own behalf
--
through
incarceration
, institutionalization, or other similar
restraint of personal liberty
--
which is the "deprivation of liberty" triggering the
protections of the Due Process Clause . . . .
55
Perhaps the earliest explicit recognition by the Supreme Court of freedom from
incarceration as a fundamental right under substantive due process came in Allgeyer:
The 'liberty' mentioned
in [the fourteenth] amendment means, not only the right of
the citizen to be free from the mere physical restraint of his person,
as by
incarceration
, but the term is deemed to embrace the right of the citizen to be free
in the enjoyment of all his faculties; to be free to use them in all lawful ways; to
live and work where he will; to earn his livelihood by any lawful calling; to
pursue any livelihood or avocation; and for that purpose to enter into all contracts
which may be proper, necessary, and essential to his carrying out to a successful
conclusion the purposes above mentioned.
56
An 1891 law review article
57
noted that Blackstone described “freedom from restraint of the
person” as “perhaps the most important of all civil rights,”
58
and that Lord Coke felt “the liberty
of a man’s person is more precious to him than everything else that is mentioned [in the Magna
Charta].”
59
Blackstone states that “the rights of all mankind . . . may be reduced to three principal
or primary articles; the right of personal
security, the right of personal liberty, and the right of
private property.”
60
Indeed, the original Latin in the Magna Charta’s “law of the land” clause
uses the term “imprisonetur.”
61
No court has invalidated a criminal statute through the application of
substantive due
process analysis to the fundamental right of freedom from incarceration. At the same time, no
court has ruled to the contrary. The Supreme Court avoided the question in Reno v. Flores:
The “freedom from physical restraint” invoked by respondents is not at issue in
this case. Surely not in the sense of shackles, chains, or barred cells, given the
Juvenile Care Agreement. Nor even in the sense of a right to come and go at will,
since, as we have said elsewhere, “juveniles, unlike adults, are always in some
form of custody,” and where the custody of the parent or legal guardian fails, the
government may (indeed, we have said must) either exercise custody itself or
appoint someone else to do so.
62
This analysis would not apply to adult drug offenders. The Fourth Circuit also avoided
addressing freedom from incarceration as a fundamental right in Hawkins v. Freeman:
Hawkins's rhetorical reference to the right as being “freedom from unjust
incarceration,” and that of amicus, American Civil Liberties
Union of North
Carolina, as the “right to be free from arbitrary incarceration,” are issue
-
begging
generalizations that cannot serve the inquiry. A properly precise description can,
however, be found in the facts and legal authorities relied upon by Hawkins in
support of his claim. From these, we deduce that the precise right asserted is that
of a prisoner to remain free on erroneously granted parole so long as he did not
contribute to or know of the error and has for an appreciable time remained on
good behavior to the point that his expectations for continued freedom from
incarceration have “crystallized.”
63
Hawkins is distinguishable because it deals with an inmate whose parole was revoked. In any
event, the casual dismissal as an “issue
-
begging generalization” flies in the face of nearly 800
years of common law tradition and over a century of Supreme Court decisions recognizing
freedom from incarceration as a fundamental right. Indeed the language of the Supreme Court’s
Ingraham decision supports the application of substantive due process proposed in this paper:
While the contours of this historic liberty interest in the context of our federal
system of government have not been defined precisely, they always have been
thought to encompass freedom from bodily restraint and punishment. It is
fundamental that the state cannot hold and physically punish an individual except
in accordance with due process of law.
64
The Court also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving
the confinement of a person found not guilty by reason of insanity:
Freedom from bodily restraint has always been at the core of the liberty protected
by the Due Process Clause from arbitrary governmental action. "It is clear that
commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection." We have always been careful not to "minimize
the importance and fundamental nature" of the individual's right to liberty.
65
While the Foucha Court indicated that “a
State may imprison convicted criminals for the
purposes of deterrence and retribution,” the remark was dicta and did not involve any discussion
of substantive limits on the police power.
66
In Meachum v. Fano the Court made a similar remark
in the context o
f a case dealing with prison conditions: “[G]iven a valid conviction, the criminal
defendant has been constitutionally deprived of his liberty to the extent that the State may
confine him.”
67
Again there was no discussion of substantive limits on the police
power. Indeed
the previous sentence noted: “The Due Process Clause by its own force forbids the State from
convicting any person of crime and depriving him of his liberty without complying fully with the
requirements of the Clause.”
68
Recently in Zadvydas
v. Davis, the Court noted:
The Fifth Amendment's Due Process Clause forbids the Government to
"depriv[e]" any "person ... of ... liberty ... without due process of law." Freedom
from imprisonment
--
from government custody, detention, or other forms of
physical restraint
--
lies at the heart of the liberty that Clause protects.
69
Freedom from incarceration is not just a fundamental right. It is the one of the most
fundamental of rights.
C. Identifying the State’s Interests
Governmental drug policy interest
s identified in federal statutes include “demand
reduction,”
70
“supply reduction,”
71
and “reducing drug abuse and the consequences of drug abuse
in the United States, by limiting the availability of and reducing the demand for illegal drugs.”
72
Federal law
sets specific goals for the National Drug Control Strategy. These include:
“Reduction of unlawful drug use to 3 percent of the population”
73
“Reduction of adolescent unlawful drug use to 3 percent of the adolescent population”
74
“Reduction of the availability of cocaine, heroin, marijuana, and methamphetamine”
75
“Reduction of the respective nationwide average street purity levels for cocaine,
heroin, marijuana, and methamphetamine”
76
and
“Reduction of drug
-
related crime.”
77
Goals are also set forth with
regard to drug
-
related crime:
(i) reduction of State and Federal unlawful drug trafficking and distribution;
(ii)
reduction of State and Federal crimes committed by persons under the influence
of unlawful drugs;
(iii) reduction of State and Federal crimes
committed for the
purpose of obtaining unlawful drugs or obtaining property that is intended to be
used for the purchase of unlawful drugs; and
(iv) reduction of drug
-
related
emergency room incidents . . . .
78
The Office of National Drug Control Policy indicates:
the goals of the program are to reduce illicit drug use, manufacturing, and
trafficking, drug
-
related crime and violence, and drug
-
related health
consequences.
79
In its 2002 National Drug Control Strategy Report, ONDCP stated:
Reduced to its barest
essentials, drug control policy has just two elements:
modifying individual behavior to discourage and reduce drug use and addiction,
and disrupting the market for illegal drugs.
80
For its part the DEA aims to “reduc[e] the availability of illicit control
led substances on the
domestic and international markets.”
81
Morality is sometimes advanced as a governmental interest in the drug war.
82
Under that
view, drug use is immoral and is prohibited for that purpose. Whether morality constitutes a
rational or substantial basis for law is an open question,
83
but it is not a compelling interest.
84
To
meet strict scrutiny under substantive due process, a policy must be narrowly tailored to
compelling interests. Morality does not pass that test.
In reviewing the many
statements about the purposes of drug policy, it appears that the
primary goal is to reduce the use of illicit drugs by both adults and children. The government
seeks to accomplish this along with a number of related goals, including demand reduction,
supply reduction, purity reduction, reduction of drug
-
related crime, and reduction of drug
-
related
health consequences.
D. Defining “Narrow Tailoring” in the Context of Substantive Due Process
Assuming that the governmental interests are compelling, we must
determine whether the
incarceration of drug offenders is narrowly tailored to achieving them. The government must
show that its policy passes strict scrutiny.
85
The concept of narrow tailoring is not well defined in
the context of substantive due process,
but has been fairly well defined in regard to the First
Amendment
86
and Equal Protection.
87
Equal Protection cases also arise out of the Fourteenth
Amendment.
88
In Wygant v. Jackson Bd. of Education the Supreme Court held:
“Under strict
scrutiny the means chosen to accomplish the State's asserted purpose must be specifically and
narrowly framed to accomplish that purpose.”
89
In a footnote, the Court described narrow
tailoring in even further detail:
The term "narrowly tailored," so frequently used in our cases
, has acquired a
secondary meaning. More specifically, as commentators have indicated, the term
may be used to require consideration of whether lawful alternative and less
restrictive means could have been used. Or, as Professor Ely has noted, t
12
classification at issue must "fit" with greater precision than any alternative means.
"[Courts] should give particularly intense scrutiny to whether a nonracial
approach or a more narrowly
-
tailored racial classification could promote the
substantial interest about
as well and at tolerable administrative expense."
90
The Wygant Court concluded that the race
-
based remedial measures at issue were not narrowly
tailored because “less intrusive means” were “available.”
91
The policy at issue must fit better
than any available alternatives. In considering “fit,” we must consider whether the policy is more
effective than the alternatives, and also whether the alternatives are less intrusive.
It is important to note here that a policy that does not advance the government’s interests
violates substantive due process regardless of how it compares with the alternatives. If it does not
accomplish its purpose, logic dictates it cannot be specifically and narrowly framed to
accomplish its purpose.
E. Advancing Governmental Interests
Congress has identified certain tools for assessing the national drug control strategy.
92
The National Household Survey is the measure for “unlawful drug use.”
93
Similarly, “adolescent
unlawful drug use” is to be measured “by the Monitoring the Future Survey of the University of
Michigan or the National PRIDE Survey conducted by the National Parents' Resource Institute
for Drug Education.”
94
On these measures, the goals are not being reached.
Consider a recent press release headline for the Monitoring the
Future Survey:
Rise in ecstasy use among American teens begins to slow.
Despite its creative phrasing, this headline is an example of failure in the War on Drugs. Ecstasy
use among teens is growing.
The measure of adolescent drug use that was specifically identified by Congress, illicit
drug use in the past 30 days, worsened in 2001.
97
More than 25% of US twelfth graders reported
using illicit drugs in the past 30 days. That is nearly double the figure for 1992 and more than
eight times the stated goa
l of 3%.
98
Over 40% of 12
th
graders tried an illicit drug in the past
year.
99
The PRIDE Survey and National Household Survey show similar results.
100
The
National Household Survey notes:
The estimated number of past month illicit drug users in the United States in 2001
(15.9 million) is somewhat higher than the estimate based on the 1992 NHSDA
(12.0 million), which reflects a low point in levels of illicit drug use in the United
States. The higher number in 2001 is due to several factors, including a much
higher rate of use among youths (10.8 percent in 2001 vs. 5.3 percent in 1992), a
slight increase in the rate of use among adults that is partly due to the aging of
younger drug
-
using cohorts (6.6 percent in 2001 vs. 5.9 percent in 1992), and a 10
percent in
crease in the size of the U.S. population.
101
The 2002 PRIDE Survey indicates that over 37% of 12
th
graders used illicit drugs during the year
2001, including 7% who used cocaine and 4% who used heroin.
102
There has been no significant reduction in illicit
drug use in recent years. Illicit drug use
is far more common today than it was ten years ago. The drug war has failed to make any
progress toward its primary goal
-
reducing illicit drug use by adults and children. Even the drug
war’s staunchest supporters, such as former Drug Czar William Bennett, provide evidence
showing the policy’s failure:
Between 1992 and 1999, rates of current drug use
--
defined as using once a
month or more
--
increased by 15%. Rates of marijuana use increased 11%. The
situation w
as far worse among our children: Lifetime use of illegal drugs
increased by 37% among eighth
-
graders and 55% among 10th
-
graders. We have
reached the point where more than one
-
quarter of all high school seniors are
current users of illegal drugs; indeed, rates of monthly drug use among high
14
school seniors increased 86% between 1992 and 1999.
103
Bennett, the former drug czar, suggests that a return to aggressive enforcement would make a
difference. His attack on former President Clinton ignores the fact that drug incarceration rates
increased dramatically during Clinton’s presidency.
104
The drug war has also failed in its other goals. The Monitoring the Future Survey tracks
how twelfth graders perceive the availability of drugs.
105
Reducing availability is an explicit goal
of the drug war.
106
The perceived availability of marijuana in 2001 was slightly higher than in
1975.
107
The figures for harder drugs are more disturbing. From 1975 to 1986, roughly 20% of
twelfth graders said heroin was easy to get.
108
That number shot up in the late 1980s and has
remained consistently higher than 30%.
109
Cocaine remains widely available to our youth, with
nearly 50% of twelfth graders saying it is easy to get.
110
The survey began measuring the
availability of ecstasy in 1989, when only 22
% of twelfth graders felt it was easy to get.
111
In
2001, that number went over 61%, having jumped from 51% the year before.
112
With drugs so widely available, the drug war is failing to reduce the supply of drugs or
their purity.
113
The National Drug Control
Strategy Report shows that, for cocaine and heroin,
price has decreased and purity has increased since 1981. For small purchases the 2000 prices are
roughly half the 1981 prices, while the prices for larger quantities are roughly one
-
quarter the
1981 prices. Cocaine purity has diminished somewhat from its peak but is still far higher than in
1981. Heroin purity is at or near its peak.
114
In the words of a government
-
contracted report:
[T]he nation’s ability to reduce drug availability and to increase drug pri
ces
appears to be limited. Since about 1988, the prices of cocaine, heroin and
methamphetamine have all fallen or remained about the same, despite what was
inaugurated in the late 1980s as a war on drugs.
115
This same report addressed the “key question [of
] whether or not the targets set by the
National Strategy are obtainable.”
116
Regarding marijuana it found that use was likely to decline
for demographic reasons and that higher prices would “reinforce this change”, but “as of yet
there is no evidence of domestic programs that would substantially increase marijuana prices . . .
.”
117
It noted that “similar patterns apply to cocaine” and that projections about heroin and
methamphetamine were less certain.
118
Among the report’s conclusions was the following:
Given
experiences since the beginning of the war on drugs, which initiated major
expansions in expenditures on supply
-
based programs, it seems more reasonable
to conclude that the Nation will not be able to have any large future influence on
decreasing the avail
ability and increasing the price of illicit drugs.
119
The drug war worsens drug
-
related health problems and has been linked to the spread of
hepatitis and AIDS, an increased risk of fatal and near
-
fatal overdoses and problems in prison
health issues.
120
Ernest Drucker noted “dramatic increases in drug
-
related emergency department
visits and drug
-
related deaths coinciding with this period of increased enforcement.
121
He
concluded:
Drugs can certainly cause harm, but our selective application of punitive drug
prohibition laws are at least as dangerous. These laws have spawned a lethal
biosocial ecology in which the poorest nations and communities are ravaged by
uncontrolled criminal drug markets, emerging infectious diseases, and the
widespread corruption of civil
society.
122
Ostrowski discussed drug
-
related health problems at length:
Because there is no quality control in the black market, prohibition also kills by
making drug use more dangerous. Illegal drugs contain poisons, are of uncertain
potency, and are injected with dirty needles. Many deaths are caused by
infections, accidental overdoses, and poisoning.
At least 3,500 people will die from AIDS each year from using unsterile needles,
a greater number than the combined death toll from cocaine and heroin. . .
. Drug
-
related AIDS is almost exclusively the result of drug prohibition. Users inject
drugs rather than taking them in tablet form because tablets are expensive; they go
16
to “shooting galleries” to avoid arrests for possessing drugs and needles; and they
s
hare needles because needles are illegal and thus difficult to obtain. In Hong
Kong, where needles are legal, there are no cases of drug
-
related AIDS. . . .
As many as 2,400 of the 3,000 deaths attributed to heroin and cocaine use each
year
–
80 percent
–
are actually caused by black market factors. For example,
many heroin deaths are caused by an allergic reaction to the street mixture of the
drug, while 30 percent are caused by infections.
123
The drug war also worsens drug
-
related crime:
124
After spending billions of dollars on law enforcement, doubling the number of
arrests and incarcerations, and building prisons at a record pace, the system has
failed to decrease the level of drug
-
related crime. Placing people in jail at
increasing rates has had little long
-
term effect on the levels of crime. In fact,
wholesale incarceration may actually increase recidivism and corresponding
crime rates. . . . In the 1980s, California's prison population increased by a
staggering 450% with no apparent effect on the number of
crimes. Considering
that prisons still primarily emphasize security over rehabilitation, the reason for
this increase becomes obvious.
125
Drug war policies are not achieving the stated drug war goals. They cannot be
“specifically and narrowly framed to accomplish their purpose”
126
because they are not
accomplishing their purpose. Drug use has not been reduced in any significant way, and levels of
drug use are far above the stated goals.
127
Our children have easy access to drugs.
128
We can’t
even keep drugs out o
f jails.
129
The drug war and the incarceration of drug offenders have also
failed to achieve secondary goals regarding supply, demand, purity, drug
-
related health problems
and drug
-
related crime. The policy of incarcerating drug offenders does not “directly
advance[]
the governmental interest asserted.”
130
The War on Drugs is not working.
13
F. Alternative Means
Even if a court is persuaded that incarceration advances the government’s interests, the
government must also show that its policy choice fits better
than the alternatives. Critics of the
drug war encompass a broad spectrum of backgrounds,
132
and the range of “solutions” is just as
wide.
133
Libertarians and others favor outright legalization of drugs.
134
The legalization of
marijuana
135
is a somewhat popular variation of overall legalization, and there are other
variations such as the legalization of marijuana for medical purposes
136
and decriminalization of
drugs or marijuana.
137
Another leading approach, known as harm reduction, looks at drugs from
a public health
perspective.
138
The effectiveness of some of these alternatives is difficult to assess. Even so, certain
comparisons can be made. Advocates of treatment point to studies showing that treatment is
much more effective than incarceration.
139
Spencer notes:
The
recidivism rate for first time Dade County drug offenders was sixty percent,
but for those who successfully completed the Dade County Drug Court treatment
programs, the recidivism rate reported by Dade County officials was only seven
percent. Drug court treatment programs are also cost effective. It costs Florida
only $2,000 to put a drug offender through a drug court program, as compared to
$17,000 per drug offender for incarceration. As a result, other drug court
programs are being established throughout
the country.
140
Similarly, a Rand study found treatment to be seven times more cost
-
effective than current
supply
-
control policy in reducing cocaine consumption.
141
Harm reduction supporters point to the Netherlands, which has a far less intrusive drug
poli
cy.
142
Dutch drug policy separates the “hard” and “soft” drug markets, condoning the use of
soft drugs, such as marijuana.
143
Drug users are not locked up, but rather are provided with “a
range of prevention and care services, with an emphasis on harm reduction.”
144
Finally, law
18
enforcement is aimed not at users and dealers, but “at the bigger national and international drug
trade, which includes organized crime.”
145
The Netherlands has had much better results than the
U.S., with fewer heroin users, fewer drug
-
related AIDS cases, less drug overdoses, and fewer
homicides while spending far less on drug law enforcement.
146
Legalization advocates can point to our nation’s experience with alcohol prohibition.
147
One author summarized Alcohol Prohibition as follows:
Millions of drinkers scoffed at Prohibition. With its legitimate manufacture
eliminated, liquor in the form of “moonshine” and “bathtub gin” were simply
produced in thousands of homemade stills across the country. Between 1921 and
1925 alone, the government seized some 696,933 such stills. One area of Chicago,
the most notorious booze
-
hustling city in the country, was estimated to have an
average of one hundred stills per city block. . . .
Even though prohibition agents made more than 500,000 arrests for liquor
violations between 1920 and 1930, the illegal flow of alcohol continued unabated.
...
Surveys showed, in fact, that the Prohibition Bureau’s agents were managing to
stop only 5 percent of rum runners and just 10 percent of stills, much like drug
trafficking statistics of today.
Unforeseen by many, Prohibition actually glamorized alcohol and
increased
its
abuse in some places. . . .
Prohibition also spurred the growth of organized crime and gang warfare and was
the direct cause of hundreds of murders. . .
.
By 1929 it became increasingly clear that Prohibition was largely unenforceable.
The public was either opposed to it, apathetic, or profiting too highly from it. By
then, five states were refusing to enforce Prohibition altogether, leaving the job to
Federal authorities.
148
That description mirrors the results of the drug war.
It seems widely accepted that alcohol prohibition was a failure.
149
In fact, Prohibition
worsened alcohol problems. Writing for the libertarian Cato Institute, Mark Thornton ably
described Prohibition’s failure to achieve its goals:
Although consumption of alcohol fell at the beginning of Prohibition, it
subsequently increased. Alcohol became more dangerous to consume; crime
19
increased and became "organized"; the court and prison systems were stretched to
the breaking point; and corruption of public officials was rampant.
150
He went on to discuss at length what he called “the Iron Law of Prohibition”
–
that Prohibition
increases the dangers of the prohibited substance:
That law states
that the more intense the law enforcement, the more potent the
prohibited substance becomes. When drugs or alcoholic beverages are prohibited,
they will become more potent, will have greater variability in potency, will be
adulterated with unknown or dangerous substances, and will not be produced and
consumed under normal market constraints. The Iron Law undermines the
prohibitionist case and reduces or outweighs the benefits ascribed to a decrease in
consumption. . . .
Before Prohibition, Americans spent roughly equal amounts on beer and spirits.
However, during Prohibition virtually all production, and therefore consumption,
was of distilled spirits and fortified wines. Beer became relatively more expensive
because of its bulk, and it might have disappeared altogether except for
homemade beer and near beer, which could be converted into real beer. . . .
There were few if any production standards during Prohibition, and the potency
and quality of products varied greatly, making it difficult to predict their
effect.
The production of moonshine during Prohibition was undertaken by an army of
amateurs and often resulted in products that could harm or kill the consumer.
Those products were also likely to contain dangerous adulterants, a government
requirement for
industrial alcohol.
According to Thomas Coffey, "the death rate
from poisoned liquor was appallingly high throughout the country. In 1925 the
national toll was 4,154 as compared to 1,064 in 1920. And the increasing number
of deaths created a public relations problem for . . . the drys because they weren't
exactly accidental." Will Rogers remarked that "governments used to murder by
the bullet only. Now it's by the quart."
Patterns of consumption changed during Prohibition. It could be argued that
Prohibit
ion increased the demand for alcohol among three groups. It heightened
the attractiveness of alcohol to the young by making it a glamor product
associated with excitement and intrigue. The high prices and profits during
Prohibition enticed sellers to try
to market their products to nondrinkers
–
undoubtedly, with some success. . . .
Prohibition may actually have increased drinking and intemperance by increasing
the availability of alcohol. One New Jersey businessman claimed that there were
10 times more pl
aces one could get a drink during Prohibition than there had been
before. It is not surprising that, given their hidden locations and small size,
speakeasies outnumbered saloons. Lee found that there were twice as many
speakeasies in Rochester, New York, a
s saloons closed by Prohibition. That was
more or less true throughout the country. . . .
20
Prohibitionists wanted and expected people to switch their spending from alcohol
to dairy products, modern appliances, life insurance, savings, and education. That
s
imply did not happen. Not only did spending on alcohol increase, so did
spending on substitutes for alcohol. In addition to patent medicines, consumers
switched to narcotics, hashish, tobacco, and marijuana. Those products were
potentially more dangerous and addictive than alcohol, and procuring them often
brought users into contact with a more dangerous, criminal element.
The harmful results of the Iron Law of Prohibition more than offset any benefits
of decreasing consumption, which had been anticipated but did not occur.
151
Joseph D. McNamara, a former police chief, has been an outspoken critic of the drug
war.
152
He points to the comments of another former police chief:
Former Los Angeles Police Chief August Vollmer, often referred to as the father
of professional police administration, wrote this in 1936:
"Stringent laws,
spectacular police drives, vigorous prosecution, and imprisonment of addicts and
peddlers have proved not only useless and enormously expensive as means of
correcting this evil, but they
are also unjustifiably and unbelievably cruel in their
application to the unfortunate drug victims. Repression has driven this vice
underground and produced the narcotic smugglers and supply agents, who have
grown wealthy out of this evil practice and who
by devious methods have
stimulated traffic in drugs. Drug addiction, like prostitution, and like liquor, is not
a police problem; it never has been, and never can be solved by policemen."
153
Our nation’s experience with alcohol prohibition demonstrates that it did not achieve its
goals. It was not effective at reducing alcohol use or abuse, made some of those problems worse,
and caused a variety of other problems.
154
Meanwhile, the enforcement of Prohibition was,
obviously, more intrusive than its non
-
enforcement after Prohibition was repealed.
G. The Incarceration of Drug Offenders is Not Narrowly Tailored
Incarceration involves a far greater infringement of fundamental rights than alternatives
which are both more effective and less intrusive.
155
The incarceration of offenders is not
advancing the state’s asserted interests. The drug war is not narrowly tailored, failing the
21
Supreme Court’s “established method of substantive
-
due
-
process analysis” as described by Chief
Justice Rehnquist.
156
The laws requiring the incarceration of drug offenders are therefore
unconstitutional, if substantive due process analysis is applied.
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