Anthony Gregory
Public Health 198 Project
November 2001

The Erosion of the Bill of Rights under the War on Drugs

Introduction

Many people have the intuition that the War on Drugs violates our civil liberties and erodes the Bill of Rights. Very few have actually took the time, however, to see exactly how it does so. This document aims to show summarily how Federal Drug Prohibition has violated each and every amendment in the Bill of Rights through both general ideas and anecdotal evidence.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A court order directed the Tattered Book Store in Denver to turn over records of its customers, presumably to curtail the manufacture of methamphetamine, a process explained in some books. [1]

In the year 2000, Boston Mayor Celusi fought pro-marijuana legalization ads in the city’s transit agency. [2]

Senators Feinstein (D-CA) and Hatch (R-UT) coauthored the Methamphetamine Anti-Proliferation Act, which in its original form outlawed certain types of speech considered to advocate drug use or production, including web sites that sold drug paraphernalia, or pages that linked to such sites. [3]

American Indians, Rastafarians and others who use controlled substances in their religious rituals risk criminal penalties for freely exercising their religion.

Amendment II

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

Once the government began violating the privacy of Americans to find drugs, it would be easy to rationalize going after other inanimate possessions.

Federal law expands the penalties for "drug traffickers" by "not less than 5 years" if at the time of the act, the person accused "possesses a firearm." [4]

Many non-violent drug offenders, when released from prison, are stripped of their right to bear arms.

In a huge number of cases, it’s the violent crime wave caused by the War on Drugs which is used to justify banning weapons perceived to be used by drug dealers. [5]

 

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In a 1994 House of Representatives hearing concerning the National Guard and the drug war, Congressman Charles Schummer (D-NY) said "The National Guard is a powerful, ready-made fighting force. Redefining its role in the post Cold War era presents exciting possibilities in the war against crime." [6]

In 1997, a 40-member unit of the army national guard moved into the Las Palmas Housing Project in Puerto Rico in order to search the facilities and fight the drug war. Since then, the number of government officials permanently quartered there has crept into the hundreds.[7] So even the seemingly anachronistic 3rd amendment is violated because of the War on Drugs.

Incidentally, this shows that a National Guard was not the kind of militia James Madison probably was referring to in Amendment II.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In a 1974 Philidelphia drug case, narcotics police pursued an alleged heroin dealer into her home without a warrant. The Supreme Court criticized a lower court ruling that a warrant was necessary, presumably because "when the police first sought to arrest Santana, she was in a public place." [8]

Congress’ Comprehensive Drug Abuse Prevention and Control Act of 1970 contained the first modern day "civil asset forfeiture" provision in the United States. The Psychotropic Substance Act of 1978 expanded the use of asset forfeiture to include any property connected to the drug crime in any way. [9]

Civil asset forfeiture allows government officials to seize property without a trial or even charging anyone with a crime. [10]

By 1991, 80% of people who lost their property to civil asset forfeiture were not charged with a crime. [11]

What started out as an unconstitutional drug war measure has turned into an enormous revenue-raising mechanism. In 1990, the U.S. Department of Justice sent a memo to all U.S. attorneys calling for a dramatic increase in forfeiture, specifically to pump more money into the Department’s coffers. [12]

In 1992, officials tried to convince 61 year-old retired rancher Don Scott to sell his land in Malibu, California. He refused. On October 2, 1992 a task force of 27 men raided his home, and Scott was shot to death. They claimed he was growing marijuana. Their only evidence turned out to be a false report from an anonymous informant. [13] Michael Bradbury, the Ventura County DA, viewed that the police raid was "motivated at least in part, by a desire to seize and forfeit the ranch for the government... [The] search warrant became Donald Scott’s death warrant." [14]

On March 26, 1994 , 13 Swat Team members with sledgehammers broke down the door of 75-year-old Reverend Acelyne Williams, searching for drugs and guns. Knocking him to the ground, he suffered a heart attack and died. They had the wrong address. [15]

Recently, the Supreme Court ruled that police may prevent people from entering their own homes while the police apply for a warrant. [16]

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Civil asset forfeiture cases circumvent the provisions regarding double jeopardy, and due process. Only recently have courts ruled that harsh civil asset forfeiture compounded with criminal penalites may constitute double jeopardy. [17]

The Supreme Court has repeatedly upheld the legitimacy of public schools mandating drug testing for its students. [18]

In a drug raid of a Detroit grocery store, no drugs were found. However, the fact that drug residue was found on three $1.00 bills was enough evidence to seize over $4,000 from the store’s cash registers and safe. Over 92% of cash in circulation has drug residue, [19] This is clearly the deprivation of property without due process.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

There aren’t nearly enough juries for the vast number of non-violent drug offenses. A defense attorney may have over a hundred clients at a time so they often favor those clients that face long sentences, and neglect those who only face a year or so. [20]

Connecticut Judge Joseph Sylvester refused outright to assign public defenders to defendants if they faced drug charges. [21]

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

In civil asset forfeiture cases, there is no criminal hearing; the property in question is taken through civil litigation. Since the property, and not the owner, is on trial, the Bill of Rights gives no protection. There’s no right to a trial by jury. If a person wishes to retrieve his lost property, he has to get permission for a trial. If the government wants, it can request a new trial if the first one rules that the property should be returned. The government can also simply refuse to return the property unless the owner pays fines of tens of thousands of dollars. [22] These procedures clearly violate the Bill of Rights and the common law.

When Billy Munnerlyn, a charter pilot, lost his plane to asset forfeiture on the basis that he flew a man who was a convicted drug dealer, and who may have been using the plane trip to transfer money, he sued to get back his plane and beat the government in court. The government then asked for $6,500 as a fee if he wanted the plane back. Having spent $80,000 on legal fees, Munnerlyn was bankrupt and could not afford $6,500. [23]

If a person sues to retrieve property, and the government loses the suit, it sometimes hands the property over to the DEA instead. This happened to Willie Jones, who had $9,600 confiscated because as a black man paying cash for an airline ticket, he fit the profile of a drug dealer. [24]

 

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Asset forfeiture is an easy way to circumvent the "excessive fines" clause.

The bail of Billy Munnerlyn, mentioned above, was originally set at $1 million. This is not uncommon in drug cases. [25]

In the 1970s and 1980s, Congress passed mandatory minimum laws which greatly reduced the discretion of the judge in handing out sentences. Gun control cases and drug offense cases constitute 94% of mandatory minimum sentences. [26]

The DEA defines trafficking as " the manufacturing, distribution, or dispensing of, or possession with intent to manufacture, distribute, or dispense, a controlled substance." Trafficking LSD, Speed, Cocaine and Heroin mean a penalty of between 5 years and life imprisonment for first time offenders, depending on the amount in question. [27]

The average sentence in Federal prison for drug trafficking is longer than for sexual abuse. [28]

 

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Certainly, the right to peacefully use drugs is one right currently being denied to the people.

Other rights not specifically mentioned and yet disparaged and denied because of the war on drugs include the right to self-medication, the right to free enterprise, the right to travel and the right to privacy.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

When the Federal Government passed the Volstead Act, outlawing alcohol in 1919, it required a corresponding Constitutional Amendment, because the Federal Government is forbidden from doing anything not authorized in the Constitution. Article I Section 8, which gives Congress its authority, did not contain language pertaining to alcohol.

The War on Drugs, however, has no Constitutional basis whatsoever. The 10th Amendment prohibits the experiment from being tried at all! Any drug laws must be passed by the state, because the power to regulate drugs is not "delegated to the United States by the Constitution" and is therefore "reserved to the States respectively, or to the people."

The government constantly rationalizes the Drug War on the basis that Congress has the Constitutional authority to regulate "interstate commerce." It’s clear however, that the Drug War could not function without a huge regulation of activity within each state.

Conclusion

This document gives a very limited list of how the War on Drugs violates the Bill of Rights. A much more comprehensive document with many more anecdotal examples could easily exist.

The War on Drugs is an unconstitutional war on the American people. In its humble beginnings in 1909, Hamilton Wright, involved in the Shanghai Opium Commission, complained that the Constitution was "constantly getting in the way" [29] of his drug war efforts. Unfortunately, it did not get in the way enough. When Congress passed the Marijuana Tax Act of 1937, few would understand how much the law would be an affirmation of Supreme Court Justice Marshall’s assertion that the "power to tax is the power to destroy." Congress had no right to pass that law, and Franklin Roosevelt had no right to sign it, since it went beyond the Federal Government’s legitimate powers as outlined in the Constitution and especially the 10th Amendment.

This shows how different types of liberty are interconnected, and how when the government is free to violate one provision of the Bill of Rights, it will only continue to violate the others. The 10th Amendment was designed to protect the other ones from being eroded by limiting the government’s power.

Drug Prohibition is the greatest assault ever perpetrated on American liberty as prescribed by the Bill of Rights. Beyond the one million non-violent drug offenders rotting in prison, Prohibition’s outright defamation of the Constitution, the Supreme Law of the Land, is an immoral and illegal crime against humanity. Liberty, the Constitution, and the American way of life are totally incompatible with the War on Drugs.

 

 

[1] MichaelKrause, "Making Booksellers into Drug Felons," IndependenceInstitute, June 28, 2000.
[2] AssociatedPress, ìCellucci wants MBTA to stand its ground in resisting marijuanaads,î Sept. 21, 2000.
[3] TheWashington Post, ìThe Anti-Meth Billî Friday, May 26, 2000, pageA24.
[4] United StatesCode, Title 18, ß 924, subsection (c) (1)
[5] Two of many examples: Denver City Council: Hearing, Nov. 6, 1989, at 6,reproduced at Defendants' exhibit B (affidavit of Barbara Romero, SeniorSecretary for City Council) in Robertson v. City of Denver, 874 P.2d 325 (Colo. 1994). "New York StateAssembly Report; The Drug Law Reform, Drug Treatment, and CrimeReduction Act of 2001"
[6] ìHouse HoldsHearing on National Guard Involvement in 'War on Drugsíî Sept-Oct1994, National Drug Strategy Network.
[7] MasterSgt. Bob Haskell, ìPuerto Rico National Guard helping to clean upneighborhood,î Army News Service, March 2, 1998.
[8] UnitedStates v. Santana, 427 U.S. 38., 1976
[9] Henry Hyde, Forfeiting our Property Rights, CATO Institute, 1995, p 24.
[10]United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., Ft.Lauderdale, 803 F.2d 626, 629 n.2 (11th Circuit Court, 1986)., cited on http://governor.state.nm.us/drug_policy/civil_asset_forfeiture.htm
[11] îGovernmentSeizures Victimize Innocent," Pittsburgh Press, August 11, 1991.
[12] Mike Gray, Drug Crazy: How We Got Into This Mess and How We Can GetOut, New York, Routledge, 1998.
[13] Wall Street Journal, August 23, 1995, page A 11.
[14] Jarret B. Wollstein, "The Looting of Americaî" International Society of Individual Liberty Pamphlet Series, 1993.
[15] Mikki Norris, Chris Conrad and Virginia Resner, Shattered Lives:Portraits from Americaís Drug War, El Cerito, California, Creative Xpressions, 2000 p 65.
[16] Reason Magazine, May1995, pg 48.
[17] Illinoisv. McArthur, Feb 20, 2001.
[18]SusanMeeker-Lowry, ìAsset Forfeiture,î Z Magazine, Jan 1996.
[19] title here - to make links David G.Savage, "High Court to Weigh Expanded School Drug Testing," LATimes, November 9, 2001. More information can be found at http://www.drugtext.org/articles/967110.htm
[20] Jarret B. Wollstein,ìThe Looting of Americaî International Society of IndividualLiberty Pamphlet Series, 1993.
[21] Mike Gray, Drug Crazy
[22] "Drug Suspects Barred From Public Defenders," New York Times, July 12, 1990, national edition, sec. B, 3.
[23] National Review, Febuary 20,1995.
[24] ìJet Siezed, Trashed, Offered Back for $66,000î by AndrewSchneider and Mary Pat Flaherty, The Pittsburg Press, August 16, 1991.
[25] "Drug Agents More Likely to Stop Minorities" by AndrewSchneider and Mary Pat Flaherty, The Pittsburg Press, August 16, 1991.
[26] "Jet Siezed..." by Andrew Schneider and Mary Pat Flaherty.
[27] Families Against ManditoryMinimums
[28] DEA Federal TraffickingPenalties as of October 1999
[29] United States Sentencing Commission. 1997 Soursebook of Federal Sentencing Statistics, Table 14, pg 30.
[30] Mike Gray, Drug Crazy.

 

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