War on Drugs
According to conventional wisdom, the term ‘‘war on drugs’’ was coined by President Richard Nixon in the early 1970s, when he fingered drug use and traffic as ‘‘public enemy number one’’ and ‘‘declared all-out, global war on the drug menace.’’ Since then, every U.S. president (except Jimmy Carter) has deployed this phrase in political rhetoric, often as a rallying cry for law enforcement or new legislation. Strictly speaking, however, the drug war is not a ‘‘war’’ in the classic sense, but instead a state-sponsored metaphor used to emphasize the alleged seriousness of the underlying threat posed by banned substances, to describe government’s collective response to this contraband, and to generally reaffirm the righteousness of drug laws and their enforcement.
The drug war typically is associated with criminalization and harsh punishment for the production, transportation, sale, purchase, possession, and use of certain intoxicating and/or psychoactive substances. Law enforcement efforts have focused on common recreational drugs such as marijuana and cocaine, but prohibition extends to a variety of other drugs as well. As a matter of pharmacological classification, opium, morphine, and heroin are correctly termed ‘‘narcotics,’’ for instance, while cocaine is a ‘‘stimulant’’ and LSD is a ‘‘hallucinogen.’’ Nonetheless, drug legislation, government officials, and the general public frequently use the term ‘‘narcotic’’ to describe any illicit drug. Other substances are not considered targets of the war on drugs and instead fall outside the Criminal Law (for example, caffeine) or are subject to regulation rather than near total prohibition (for example, alcohol and tobacco).
In theory, the use of the criminal sanction has both supply-side and demand-side components. The former seeks to diminish the availability of drugs by employing government resources to eliminate drug production, interdict drugs as they flow through distribution chains, and apprehend those who sell drugs to ultimate consumers. In contrast, the latter strategy aims to reduce the demand by deterring potential users from purchasing and consuming illegal drugs. Moreover, it should be kept in mind that certain government policies may not implicate the criminal justice system at all, such as drug treatment and abstinence programs or aerial eradication schemes using defoliants. Nonetheless, supply-side strategies backed by the criminal sanction have dominated drug war efforts.
The following will discuss the history and development of the war on drugs followed by the legal debate that it has inspired.
For much of human history, drug production, distribution, and consumption were not matters for government regulation let alone prohibition. Instead, any controls were informal in nature, based on the force of social mores rather than legal restrictions. The exceptions were few and far between, marked by strict dictates and brutal punishment. Coffee was banned in sixteenth-century Egypt and the Ottoman Empire, for instance, and tobacco was forbidden in a handful of nations during the seventeenth century, enforced with corporal punishment and even death in, among others, czarist Russia. Likewise, Imperial China made numerous attempts to stamp out opium in the eighteenth and nineteenth centuries, culminating in a frenzy of state executions, while England occasionally applied exorbitant duties on gin to decrease alcohol sales and consumption. But in general, the pre-twentieth century norm throughout the world was the absence of legal constraints on drugs and drug-related activities.
The same can be said of the United States, with a few exceptions during the late nineteenth century and early twentieth century. Opiates and eventually cocaine were widely used in nineteenth-century America for a variety of medicinal purposes. These drugs were also available without a prescription by mail order or over the counter at grocery and general stores, while countless patent medicines were laced with opiates and popular beverages were spiked with cocaine, such as the aptly named Coca-Cola. Although Pennsylvania enacted the first drug control legislation in America, restricting the sale of morphine in 1860, only a handful of antidrug laws were in effect prior to the turn of the previous century, including local bans on opium in San Francisco, California and Virginia City, Nevada, and state wide laws regarding cocaine in Illinois and opium in Idaho and Ohio.
Despite the relative dearth of drug laws in the nineteenth century, a number of factors coalesced around the turn of the century and provoked a campaign for national legislation. To begin with, there was lingering anxiety over the consequences from extensive use of narcotic drugs to treat the wounded during the Civil War, with many veterans supposedly coming home with the so-called ‘‘soldier’s disease,’’ addiction to opiates. Another concern was careless prescription of narcotics by medical professionals as cure-alls for nearly any disease or defect, as well as the aforementioned availability of drugs without prescription and their introduction into common goods and remedies—all of which allegedly produced inadvertent drug addiction among the general population.
The federal Pure Food and Drug Act offered one Progressive-era response to such concerns, requiring accurate labeling and full disclosure of ingredients to consumers, including potentially addicting substances such as opiates and cocaine. But the American Progressive movement, composed of a wide range of civic reformers and clergymen, saw the issue as more than one of good governance, transparency, and a fully informed public. The Progressive agenda also sought to shape the country’s morality by prohibiting social vices like gambling, prostitution, and not least of all, intoxicating substances. The consumption of alcohol, cocaine, opiates, and nicotine in whatever form was looked upon with disdain, seen as a primary cause of sloth, depravity, and even violent crime, and thus an impediment to the advancement of American society.
The seemingly benevolent paternalism of Progressives merged with less charitable values, including ethnocentric hegemony and racism. As detailed in sociologist Joseph Gusfield’s classic study, Symbolic Crusade, the antialcohol temperance movement was not merely a conflict between teetotalers and imbibers, but a cultural battle as well. The ‘‘rural, orthodox Protestant, agricultural, native Americans’’ were pitted against ‘‘the immigrant, the Catholic, the industrial worker, and the secularized upper class,’’ with the social status of the former degraded by the normalization of the drinking and saloon life of the latter. Temperance leaders sought public dominance of their abstemious qualities through a national alcohol ban backed by the criminal sanction.
Similar cultural struggles motivated the drive for legislation against opiates and cocaine, with the lifestyle of the drug user challenging the ascetic qualities and fabled work ethic of American Protestantism. But there were additional quasicultural and ethnocentric factors at play, most notably, race-based animosity and fear. For instance, early drug laws in the American West were overtly racist, aimed at Chinese railroad workers and laborers who were easy scapegoats for local crime and other social ills. Likewise, Southern folklore claimed that African Americans were particularly susceptible to drug addiction, and when on cocaine, they were deemed impervious to certain weapons and prone to crime sprees, including the ultimate offense in the Deep South, the rape of white women.
International comity provided yet another rationale for antidrug legislation in the United States. Acquisition of the Philippine Islands after the Spanish-American War forced administrators of the new U.S. territory to evaluate both drug consumption on the archipelago and its involvement in opium smuggling. Around this time, China embarked on a massive antidrug campaign marked by brutal enforcement methods, with opium blamed for the empire’s social and economic decline, and the narcotics trade considered a symbol of foreign intrusions on national sovereignty. Some U.S. officials saw this as a dual opportunity to quell Chinese anger over mistreatment of their citizens in the United States, which had led to a boycott of American imports, and also to address rampant drug smuggling in the Philippines. Moreover, American missionaries in the Far East supported the Chinese anti-opium efforts on religious and humanitarian grounds and were convinced that the United States had a moral obligation to help stamp out the evils of narcotics. Appropriately enough, the Episcopal bishop of the Philippines led the charge for a series of meetings with delegations from around the world, culminating in protocols calling upon all nations to ban the narcotics trade.
A final factor, and one that would be repeated in subsequent decades, was the rise of a singular figure with the necessary talents, political alliances, and sheer tenacity in support of antidrug efforts. This individual, Dr. Hamilton Wright, had been a U.S. delegate to the international meetings and authored the leading study on drug use and abuse in America. Although its methodology has since been discredited on numerous grounds, the study offered the conceptual foundation for a national response to drugs in the early twentieth century. Moreover, Wright became a chief negotiator and principal architect for federal legislation, forwarding a litany of reasons to provoke lawmakers to action or soothe any anxieties raised by the proposed bill. He deployed all of the aforementioned rationales in favor of antidrug legislation: America’s international obligations and moral duties to support other countries, the need for Progressivestyle regulation and paternal protection of innocent victims, the rise of drug use and related crime in U.S. cities and the resulting threat to the dominant culture, and the deeply ingrained racial prejudice and racebased fear held by congressional delegations from certain geographic regions. Given the vehemence of his efforts and seemingly unprincipled collection of arguments, historians have questioned whether Wright was driving the antidrug movement toward success or instead the movement was propelling the ‘‘father of American narcotics laws’’ to the fame and fortune he desired.
But whatever the underlying motivation, the efforts led to the Harrison Act of 1914, named after the congressman who introduced the bill, Representative Francis Burton Harrison, although commentators have suggested that appellative credit should have gone to Wright or possibly Representative James Mann or Secretary of State William Jennings Bryan, who were the bill’s main facilitators in the legislative and executive branches. Nonetheless, the title stuck and the Harrison Act remained the cornerstone of American narcotics regulation for more than a halfcentury. What changed, however, were the legislation’s alleged goals. On its face, the Harrison Act had three purposes: (1) to uphold America’s treaty commitments from previous international conclaves; (2) to regulate the marketing of opium and other drugs and to place the dispensing function in the hands of medical professionals; and (3) to provide revenue for the federal government. Toward these ends, the law demanded documentation of drugs fromtheir arrival in the United States through their distribution to patients, while physicians and other permissible drug dispensers were required to be licensed with the government and pay a small tax.
In the words of drug scholar Edward Brecher, ‘‘It is unlikely that a single legislator realized in 1914 that the law Congress was passing would later be deemed a prohibition law.’’ Yet that is precisely what happened. The entity entrusted with enforcement of the Harrison Act, the Internal Revenue Service of the U.S. Treasury Department, promulgated regulations that slowly converted the legislation from an orderly marketing and taxation scheme into a de facto ban backed by criminal sanction. In particular, federal law enforcement claimed that the act barred prescriptions to drug users solely to maintain their addiction. The lower courts rejected this tortuous statutory interpretation on a number of grounds, as did the U.S. Supreme Court in its 1916 decision, United States v. Jin Fuey Moy. Only a few years later, however, the Supreme Court reversed course in a pair of 1919 cases—United States v. Doremus and Webb v. United States—which affirmed, respectively, the constitutionality of the Harrison Act and the validity of criminal prosecutions for prescribing and dispensing drugs to an addict.
The judicial flip-flop was inexplicable in terms of legal doctrine, but perfectly explainable as a matter of historical events. In the three-year interim, World War I had incited extreme nationalism that had no place for antisocial and economically counterproductive drugs and their addicts. Likewise, the Bolshevik Revolution generated a ‘‘red scare’’ throughout the nation, with drugs being associated with rebellion and addiction viewed as unpatriotic. Most of all, the temperance movement had finally achieved a nationwide ban on alcohol with the passage of the Eighteenth Amendment to the U.S. Constitution and the necessary enabling legislation known as the Volstead Act. American society embarked on a phase of intolerance against those who failed to conform to the dominant cultural norms, and a national prohibition on alcohol, opium, and other drugs was part and parcel of this dogmatic agenda. Alcohol prohibition would last almost fourteen years, and today is considered an abject failure by most commentators. Prohibition had only marginal effect on alcohol consumption but produced an enormous black market of smuggling and speakeasies, fostered unprecedented levels of graft and public corruption, and created a financial windfall for gangsters who, in turn, protected their illegal enterprises with lethal threats and violence. But while the first ‘‘drug war’’ would end with the passage of the Twenty-First Amendment in 1933, ‘‘America’s longest war’’ was only getting started.
Development and Current Status
During the initial years under the Harrison Act, the number of federal agents and associated budget resources remained relatively small, although enforcement efforts still produced a sizable yield in terms of criminal punishment. Within a decade and a half, nearly a third of inmates in federal prisons had been sentenced under the Harrison Act. Still, the extent of antidrug efforts during this period seems rather paltry by today’s standards. As with passage of the first national drug law, a number of factors would coalesce and eventually lead to the current drug war.
As Hamilton Wright had been necessary for passage of the Harrison Act, a singular individual was required to professionalize and intensify drug enforcement efforts. In 1930, Harry Anslinger became the director of the newly created Federal Bureau of Narcotics, the successor to the Narcotics Division of the Internal Revenue Service. ‘‘The father of the drug war’’ proved to be a relentless antidrug crusader, disseminating the idea that drugs and drug addiction were unprecedented threats to American society that required concerted efforts for their elimination. By cultivating strong relationships with federal lawmakers, Anslinger was able to obtain virtually all of the Bureau’s desired funding and legislation. Moreover, he used his position to push for state legislation that paralleled federal law, and within a decade almost every American jurisdiction had adopted stiff antidrug regimes.
Among Anslinger’s many endeavors during his three decades at the helm of federal drug enforcement, his push to criminalize marijuana is probably the best known and most consequential. The resulting propaganda campaign forwarded the idea that shocking crimes were commonly committed under the influence of marijuana, with the drug creating ‘‘reefer madness’’ in its consumer. Similar to the race bating that supported the Harrison Act, Anslinger singled out marijuana use among minorities as causing both serious crime and interracial sexual relations. He then insisted that marijuana was quickly spreading among the children of respectable America and that similar violence and moral depravities were sure to follow. ‘‘You smoke a joint,’’ Anslinger hyperbolically claimed in congressional testimony, ‘‘you’re likely to kill your brother.’’ By 1937, antimarijuana efforts had inspired legal bans in most states and, for the first time, federal legislation. Like the Harrison Act, the Marijuana Tax Act was nominally a revenue and registration statute, requiring physicians and other permissible distributors to obtain licenses and pay small fees. But in a bit of de´ja` vu, Anslinger’s Narcotics Bureau issued few permits and effectively terminated medically prescribed marijuana, treating distribution of this drug as a federal crime carrying the possibility of substantial punishment.
During and after World War II, drug use and abuse remained stable and even possibly declined due to the war-related disruption of smuggling operations. Nonetheless, Anslinger and several leading federal lawmakers attempted to connect drugs to increased juvenile delinquency and, most importantly, the growth of organized crime. Apparently, mob bosses such as Salvatore ‘‘Lucky’’ Luciano became heavily involved in drug trafficking, creating syndicates modeled after the illegal enterprises of the alcohol prohibition era. Although the extent of Mafia involvement and resulting drug-related crime and violence can be disputed, the evocative claims made by the Federal Bureau of Narcotics provided the impetus for progressively more severe legislation during the postwar period. Moreover, the nation was immersed in the demagoguery of Senator Joseph McCarthy, with drugs considered un-American or, even worse, part of a communist conspiracy against the United States. In 1951, Congress passed the Boggs Act, which both increased the potential punishment and set mandatory minimum sentences for drug crimes, and many states followed this lead with ‘‘little Boggs Acts’’ that provided lengthy sentences for drug offenders. Five years later, federal lawmakers enacted still harsher punishment under the Narcotics Control Act of 1956, raising the Sentencing range for all drug offenses and authorizing the death penalty for the sale of heroin to a minor.
During the 1960s, a schism grew between those who pitied drug addicts and supported rehabilitation versus those who detested all drug offenders and favored harsh punishment. The former group was buttressed by a joint study from the American Bar Association and American Medical Association that suggested, among other things, experimental drug clinics for treating addiction. But the latter group dominated the federal government and pushed for further and stronger antinarcotics legislation. In 1963, the President’s Commission on Narcotic and Drug Abuse made a series of recommendations for reforming federal drug policy, although only a few of them came to fruition. As the Commission suggested, previously unregulated drugs came under federal control, including amphetamines, barbiturates, and eventually LSD. Likewise, in 1965 various drug issues were vested in the new Bureau of Drug Abuse Control within the Food and Drug Administration; the new agency’s period of influence would be short lived, however, as it was eliminated along with the old Federal Bureau of Narcotics in 1968 and replaced with a new multipurpose Bureau of Narcotics and Dangerous Drugs lodged in the Department of Justice. And although civil commitment and treatment had been authorized by Congress under the Narcotic Addict Rehabilitation Act of 1966, the statute’s implementation was so restricted as to have little practical effect on addicted populations and Criminal Law enforcement.
The turmoil in federal drug policy paralleled the cultural upheaval of the late 1960s. Recreational drug use became popular with American youth, particularly among so-called ‘‘hippies’’ and antiwar protesters. With acceptance if not outright endorsement of timehonored drugs such as marijuana and relatively newer ones such as LSD, the counterculture’s drug use symbolized opposition to government, the Vietnam War, and traditional social values. The apparent threat to established society was palpable, raising the anxieties among mostly older, more conservative Americans. Drugs were seen to be spreading from stereotypical users—minorities and the urban poor—to suburban youth. These fears were only compounded by the rampant drug use by U.S. soldiers in Vietnam and the alleged wave of heroin addiction among returning war veterans.
In 1968, Richard Nixon was elected president in large part due to a ‘‘law and order’’ campaign that promised a national crackdown on crime. During his first year in office, President Nixon drew upon the conventional wisdom that there was a causal connection between crime and drugs, warning the American public of the ‘‘serious national threat’’ posed by illegal drugs and calling for a complete overhaul of federal law and coordination with state governments. The end result was the Comprehensive Drug Abuse Prevention and Control Act of 1970, a lengthy omnibus statute premised on Congress’s jurisdiction over interstate commerce rather than the power to tax and spend. It consolidated all previous federal drug provisions into a single scheme and, among other things, established the modern five-category approach (referred to as ‘‘schedules’’) predicated on each drug’s alleged medical value and potential for abuse. While heroin, LSD, and even marijuana were placed in the strictest schedule with no accepted medical use, for instance, cocaine, opium, and amphetamines were placed in a somewhat more relaxed category. The law also set steep maximum punishments for drug crimes, ranging up to fifteen years of imprisonment, as well as enhanced penalties for repeat offenders and supposedly dangerous drug criminals. Moreover, many states had already enacted or would eventually adopt drug laws comparable to the federal approach. Some jurisdictions took even more drastic steps, including New York State’s notoriously harsh ‘‘Rockefeller Drug Laws,’’ which provided mandatory prison terms and even life sentences for drug crimes.
In 1971, President Nixon formally declared a war on drugs, and two years later, he merged the various antidrug forces into a ‘‘superagency,’’ the Drug Enforcement Administration (DEA), with broad authority over all aspects of illegal drug trade and use. But despite concerted efforts and Nixon’s own declaration that ‘‘we have turned the corner on drug addition,’’ drugs continued to flow into and throughout the United States. Cocaine became particularly chic during the 1970s, and its popularity and media depictions continue to this day, along with Criminal Law enforcement efforts against this drug. And although the administration of President Jimmy Carter advocated decriminalizing marijuana, such proposals for federal drug law all but ended with the end of his term in office.
In the 1980s, President Ronald Reagan re-declared war on drugs, emphasizing aggressive drug enforcement and an abstinence campaign highlighted by the pithy phrase, ‘‘Just Say No.’’ These efforts seemed to have little effect, as this decade witnessed, among other things, the rise of billion-dollar drug smuggling operations, the introduction and ensuing ‘‘epidemic’’ of crack cocaine, and the growth of cutthroat drug dealing by street gangs. The media publicized these stories with specificity, for instance, documenting the drug trafficking by Colombian cocaine cartels, the neonatal damage to ‘‘crack babies’’ caused by their mother’s cocaine consumption, and the lethal drug turf wars between ‘‘Crips’’ and ‘‘Bloods’’ in urban America.
In 1986, Congress responded to the perceived drug scourge and related crime by enacting lengthy mandatory minimum sentences for trafficking comparatively small quantities of illegal drugs; for instance, possession with intent to distribute as little as five grams of crack cocaine generated a five-year mandatory prison term. Federal lawmakers further extended the scope of mandatory drug minimums in 1988 by adding drug-related conspiracies to the predicate crimes. A year later, President George H.W. Bush re-declared war on drugs and created the Office of National Drug Control Policy to oversee the federal government’s antidrug efforts, with the head of this office typically referred to as the nation’s ‘‘drug czar.’’ Although President Bill Clinton was the first American chief executive to admit to experimenting with drugs (claiming that he ‘‘tried’’ but did not ‘‘inhale’’ marijuana), the Clinton administration sustained the drug war through the turn of the twenty-first century, including spending billions of dollars on eradication programs in foreign countries. Likewise, President George W. Bush has continued drug enforcement efforts since his election in 2000, and in light of the terrorist attacks the following year, the Bush administration has upped the ante by attempting to draw a connection between the drug war and the new ‘‘war on terrorism.’’
A few statistics help provide context for understanding the extent of America’s war on drugs. In the late 1960s, the budget for the Federal Bureau of Narcotics was around $6 million. Federal drug enforcement spending increased to over $40 million in 1970 and to more than $320 million in 1975. By the early 1980s, the federal drug control budget had well surpassed the billion-dollar mark, and in the year 2000, the budget soared to $18.5 billion. By the late 1990s, conservative estimates placed state drugrelated expenditures at over $80 billion, or more than 13 percent of all state spending. Pursuant to their billion-dollar budgets, law enforcement agencies arrested over 1.5 million people for drug crimes in 2001, a number that has tripled since 1980, with 80 percent of drug arrestees nabbed for simple possession. Well over 100,000 jail inmates are being held for drugrelated crime, and more than 300,000 individuals are serving time for drug offenses in state and federal prisons. The average federal drug sentence is around 6.5 years, more than three times the mean punishment for those convicted of manslaughter. Almost half of the population admits to at least trying illegal drugs during their lifetime, with nearly 13 percent of all Americans admitting to drug use in the past year. One survey reported that nine out of ten high school seniors said they could obtain at least some controlled substance, while the street price of illegal drugs has actually decreased over the past two decades. Pursuant to the large demand and plentiful supply, Americans spent $66 billion on illicit drugs in 1998 and more than $63 billion the following year. Moreover, a 1992 study found that drugs and drug warfare cost society around $98 billion per year, a figure that one might safely assume has increased substantially during the intervening years.
Almost all legal challenges to drug regulations and their enforcement have failed over the past nine decades, leading some scholars to claim that the courts have created a ‘‘drug exception’’ to the Constitution. As mentioned above, the U.S. Supreme Court initially held in its 1916 Jin Fuey Moy decision that Congress had not intended ‘‘to make the probably very large proportion of citizens who have some preparation of opium in their possession criminal,’’ and as a result, mere drug possession was an insufficient predicate for conspiracy charges. But three years later the Court reversed course, holding in Doremus that the Harrison Act was constitutionally valid pursuant to Congress’s taxation power, while in Webb, it affirmed law enforcement’s interpretation of the act banning physicians from prescribing narcotics to their drugaddicted patients. And in its 1921 decision in Minnesota v. Martinson, the Supreme Court rejected a last jurisdictional challenge to drug regulation, concluding that a state could enact drug laws despite the existence of federal statutes covering the same topic. Since then, legal challenges to government’s power to enact drug regulations and denominate their violation a crime have uniformly failed. The one outlier, Ravin v. State, was a 1975 state case announcing that possession of marijuana by an adult for personal consumption in one’s home was protected under the Alaska Constitution and thus beyond the state’s police powers. It must be noted, however, that Alaska voters later approved a constitutional amendment that allowed the recriminalization of marijuana possession.
More focused challenges to drug laws or their enforcement have largely been unsuccessful as well. In 1962, criminalization opponents saw the Supreme Court’s decision in Robinson v. California as a potentially robust limitation on drug punishment. In that case, the Court struck down a state statute that made it a crime to ‘‘be addicted to the use of narcotics’’ as violating the Eighth Amendment’s ban on cruel and unusual punishment. ‘‘[N]arcotic addiction is an illness,’’ Justice Potter Stewart opined, and ‘‘[e]ven one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.’’ Six years later in Powell v. Texas, however, the Supreme Court upheld the crime of being intoxicated in public against an Eighth Amendment challenge, thereby clarifying Robinson as only barring so-called ‘‘status crimes’’ but not affecting offenses that criminalize conduct alone. Although an individual cannot be punished for drug addiction, he may be charged and sentenced for drug use, possession, sale, and so on. More recently, the Supreme Court addressed the issue of extreme punishment for drug crimes in Harmelin v. Michigan. In this 1992 case, the defendant was convicted of possessing more than 650 grams of cocaine and received a mandatory life sentence without the possibility of parole. Despite the fact that the sentence severity was only surpassed by the death penalty, the Court concluded that it was not cruel and unusual punishment under the Constitution.
Other substantive challenges to drug laws have likewise failed before the Supreme Court. In the 1990 case of Employment Division v. Smith, civil plaintiffs claimed that the denial of unemployment benefits because of their spiritual peyote use violated the First Amendment clause protecting the free exercise of religion. The Court rejected this claim, arguing that generally applicable drug regulations that have an incidental effect on religious practices are nonetheless constitutional. In 2001, the Supreme Court considered whether medical necessity might be a valid defense to federal drug laws. In that case, United States v. Oakland Cannabis Buyers’ Co-Op, an organization established under state law to distribute marijuana to authorized patients for medical purposes was sued by U.S. officials to enjoin their operations. The group maintained that a common-law medical necessity defense should be read into the federal drug scheme, but the Court rejected this argument, holding that Congress’s decision to place marijuana in the most restrictive schedule foreclosed any contention that the drug has currently accepted medical value.
Like substantive claims, almost all procedural challenges to drug law enforcement have been rejected by the courts. For instance, in a pair of 1989 cases, Caplin & Dryslade v. United States and United States v. Monsanto, the Supreme Court upheld the pretrial asset forfeiture against drug defendants even though the funds were necessary to pay attorneys’ fees or had already been transferred to their legal counsel. According to the Court, ‘‘there is a strong governmental interest in obtaining full recovery of all forfeitable [drug] assets, an interest that overrides any Sixth Amendment [right to counsel claim].’’ Similarly, in the 1987 case of United States v. Salerno, the Supreme Court upheld the federal Bail Reform Act, which permitted pretrial detention without Bail for, among other things, certain drug crimes. And in 1996, the Court’s decision in United States v. Armstrong rejected a discovery request to determine whether drug offenders were being selectively prosecuted based on their race, despite a showing that all crack cocaine cases closed during a calendar year in the relevant federal district involved African-American defendants.
Although drug enforcement has affected the full array of constitutional criminal procedure guarantees, in the words of one federal judge, the ‘‘hors de combat of the government’s so-called War on Drugs’’ has been the search and seizure protections under the Fourth Amendment. This was particularly evident in a series of drug-related cases in the mid- to late-1980s. In Oliver v. United States (1984), the Supreme Court held that law enforcement can ignore ‘‘no trespassing’’ signs and hurdle locked fences to sneak onto the property surrounding homes in search of drugs, while in United States v. Dunn (1987) the Court acquiesced to DEA agents who jumped over a perimeter fence, several barbed wire fences, and an interior wooden fence to snoop for a drug lab within a rancher’s barn. In California v. Greenwood (1988), narcotics agents were allowed to examine contents of garbage bags to uncover indicia of drug activity within the defendant’s home. And in California v. Ciraolo (1986) and Florida v. Riley (1989), the Supreme Court held that law enforcement may fly in planes and helicopters, respectively, to detect marijuana cultivation on private property. In all of these cases, the justices concluded that no reasonable expectations of privacy had been implicated, meaning that such drug war–driven intrusions can be undertaken without judicial oversight and in the absence of a warrant or probable cause.
More recently, the 1998 case of Minnesota v. Carter scrutinized the actions of a police officer who peered through a small gap in an apartment’s drawn window blind and witnessed a pair of house guests bagging up cocaine. In affirming the convictions, the Court held that the drug dealers had no Fourth Amendment protection because they were engaged in a ‘‘purely commercial’’ transaction, were in the home for a relatively short period of time, and had no previous association with the resident. The Supreme Court has also tacitly acquiesced to the drug-related phenomenon of racial profiling, where law enforcement uses race as a proxy for drug crime which, in turn, leads to the detention and search of minority individuals in public places. In 1996, the Court held in Whren v. United States that police may stop vehicles for traffic violations without inquiry into their ‘‘subjective intentions,’’ regardless of signs that the officers were really pulling over minority motorists in pursuit of illegal drugs. Lower court cases, such as the 1992 decision in United States v. Weaver, have ignored or even explicitly allowed law enforcement’s use of race to determine whether an individual should be detained as a potential drug courier.
A final drug-related Fourth Amendment issue helps demonstrate the extent to which drug war prerogatives can trump individual privacy interests. Over the past decade and a half, the Supreme Court has had occasion to consider six drug testing regimes, each conducted in the absence of judicial warrants and probable cause. A pair of 1989 cases, National Treasury Employees Union v. Von Raab and Skinner v. Railway Labor Executives’ Association, upheld drug testing for, respectively, certain customs agents and railroad employees based on the allegedly minimal intrusions on privacy and ‘‘compelling’’ government interests at stake, namely, preventing ‘‘unsympathetic’’ customs agents from being involved in drug interdiction or carrying firearms and deterring train accidents resulting from intoxicated railroad workers. In contrast, two subsequent cases—Chandler v. Miller in 1997 and Ferguson v. City of Charleston in 2001— struck down drug testing programs. In Miller, a testing regime for political candidates was deemed to be largely ‘‘symbolic’’ and therefore failed to provide the type of justification for warrantless, suspicionless searches. Ferguson involved a program where certain maternity patients had their urine tested without their consent, and positive results were handed over to local officials for possible criminal prosecution—all of which made the regime look like traditional antidrug policing and thus unconstitutional in the absence of valid search warrants. The Supreme Court, however, appears to have given carte blanche to drug test public school students. In the 1995 Vernonia School District 47J v. Acton case, the Court upheld a testing regime where all student athletes had to consent to urinalysis in order to play sports, arguing that those individuals who are tested have a substantially lower expectation of privacy, as students in general are ‘‘committed to the temporary custody of the State as schoolmaster’’ and student athletes in particular are subject to the ‘‘communal undress’’ of the gym locker. But in the Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls decision of 2002, the Supreme Court expanded its earlier reasoning in affirming a testing program for students participating in any extracurricular activity, whether it was band, choir, debate, or even the Future Homemakers of America.
References and Further Reading
- Barnett, Randy E., Bad Trip: Drug Prohibition and the Weakness of Public Policy, Yale Law Journal 103 (1994): 2593–2630.
- Boaz, David, A Drug-Free America—or a Free America? University of California Davis Law Review 24 (1991): 617–636.
- Bonnie, Richard J., and Charles H. Whitebread, II. The Marihuana Conviction: A History of Marihuana Prohibition in the United States. Charlottesville: University Press of Virginia, 1974.
- Brecher, Edward M., et al. Licit and Illicit Drugs: The Consumers Union Report on Narcotics, Stimulants, Depressants, Inhalants, Hallucinogens, and Marijuana— Including Caffeine, Nicotine, and Alcohol. Philadelphia: Lippincott Williams & Wilkins, 1972.
- Bureau of Justice Statistics, U.S. Department of Justice. Drugs and Crime Facts. Updated July 11, 2005. https://www.ojp.usdoj.gov/bjs/drugs.htm.
- ———. Sourcebook of Criminal Justice Statistics 2002. https://www.albany.edu/sourcebook/.
- Courtwright, David T. Dark Paradise: Opiate Addiction in America before 1940. Cambridge, MA: Harvard University Press, 1982.
- Duke, Steven B., and Albert C. Gross. America’s Longest War: Rethinking Our Tragic Crusade against Drugs. New York: G.P. Putnam’s Sons, 1994.
- —Finkelman, Paul, The Second Casualty of War: Civil Liberties and the War on Drugs, Southern California Law Review 66 (1993): 1389–452.
- Grinspoon, Lester, and James B. Bakalar. Cocaine: A Drug and Its Social Evolution. New York: Basic Books, 1978.
- ———. Marihuana: The Forbidden Medicine. New Haven, CT: Yale University Press, 1997.
- Gusfield, Joseph R. Symbolic Crusade: Status Politics and the American Temperance Movement. Urbana: University of Illinois Press, 1963.
- Hamowy, Ronald. Dealing with Drugs: Consequences of Governmental Control. San Francisco: Pacific Research Institute for Public Policy, 1987.
- Kaplan, John. The Hardest Drug: Heroin and Public Policy. Chicago: University of Chicago Press, 1983.
- Luna, Erik, Drug Exceptionalism, Villanova Law Review 47 (2002): 753–807.
- ———. The Prohibition Apocalypse, DePaul Law Review 46 (1997): 483–568.
- Morgan, H. Wayne. Drugs in America: A Social History, 1800–1980. Syracuse, NY: Syracuse University Press, 1981.
- Musto, David F. The American Disease: Origins of Narcotic Control. New York: Oxford University Press, 1999.
- ———. Drugs in America: A Documentary History. New York: New York University Press, 2002.
- Nadelman, Ethan. ‘‘Should We Legalize Drugs? History Answers: Yes.’’ American Heritage (1993): 41–45.
- Ostrowski, James, The Moral and Political Case for Drug Legalization, Hofstra Law Review 18 (1990): 607–702.
- Rudovsky, David, The Impact of the War on Drugs on Procedural Fairness and Racial Equality, University of Chicago Legal Forum 1993 (1994): 237–274.
- Trebach, Arnold S. The Heroin Solution. New Haven: Yale University Press, 1982.
- Wisotsky, Steven. Beyond the War on Drugs: Overcoming a Failed Public Policy. Buffalo, NY: Prometheus Books, 1990.
Cases and Statutes Cited
- Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002)
- California v. Ciraolo, 476 U.S. 207 (1986)
- California v. Greenwood, 486 U.S. 35 (1988)
- Caplin & Dryslade, Chartered v. United States, 491 U.S. 617 (1989)
- Chandler v. Miller, 520 U.S. 305 (1997)
- Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
- Ferguson v. City of Charleston, 532 U.S. 67 (2001)
- Florida v. Riley, 488 U.S. 445 (1989)
- Harmelin v. Michigan, 501 U.S. 957 (1991)
- Minnesota v. Martinson, 256 U.S. 41 (1921)
- Minnesota v. Carter, 525 U.S. 83 (1998)
- National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
- Oliver v. United States, 466 U.S. 170 (1984)
- Powell v. Texas, 392 U.S. 514 (1968)
- Ravin v. State, 537 P.2d 494 (Alaska 1975)
- Robinson v. California, 370 U.S. 660 (1962)
- Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)
- United States v. Armstrong, 517 U.S. 456 (1996)
- United States v. Doremus, 249 U.S. 86 (1919)
- United States v. Dunn, 480 U.S. 294 (1987)
- United States v. Jin Fuey Moy, 241 U.S. 394 (1916)
- United States v. Monsanto, 491 U.S. 600 (1989)
- United States v. Oakland Cannabis Buyers’ Co-Op, 532 U.S. 483 (2001)
- United States v. Salerno, 481 U.S. 739 (1987)
- United States v. Weaver, 966 F.2d 391 (8th Cir. 1992)
- Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
- Webb v. United States, 249 U.S. 96 (1919)
- Whren v. United States, 517 U.S. 806 (1996)
See also Anslinger, Harry Jacob; Board of Education v. Earls, 536 U.S. 822 (2002) (students); California v. Greenwood, 486 U.S. 35 (1988); Chandler v. Miller, 520 U.S. 305 (1997) (candidates); Drug Testing; Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Harmelin v. Michigan, 501 U.S. 957 (1991); Mandatory Minimum Sentences; National Treasury Employee Union v. Von Raab, 489 U.S. 656 (1989); Robinson v. California, 370 U.S. 660 (1962); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989); Vernonia School District v. Acton, 515 U.S. 646 (1995); Victimless Crimes