Tuesday, June 4, 2013

A "Substantive Due Process" Challenge to Drug Prohibition


A Substantive Due Process Challenge to the War on Drugs by Warren Redlich

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


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


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.


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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