VII. Effects Of Contemporary Drug Policy On The Integrity Of Government

As a general principle, where respect for the integrity of government is severely compromised, its ability to govern and the rule of law itself breaks down. In this regard, we note that past decades of drug policy, characterized by use of draconian penal sanctions, has resulted in legislative and enforcement measures of questionable wisdom and validity.

Integrity of government and, specifically, respect for its representatives in the law enforcement community has been further eroded by repeated incidents of individual and systemic police corruption relating to the lucrative, black-market drug trade with which many law enforcement officers come into contact. Meanwhile, extreme harshness of drug laws, often requiring draconian mandatory minimum sentences in the event of conviction after trial, causes widespread plea bargaining and entry of guilty pleas, even where such pleas are inappropriate. This results in insufficient checks on improper police activity, generally tested at hearings or trial of such cases. It further results in the criminal conviction of innocent individuals, and incarceration of many such individuals, (albeit for shorter periods than had they been convicted after trial). A further product of these circumstances, is the widespread deprivation to individuals of the right to due process of law (through inability to risk trial), and overall loss of confidence in the ability to obtain fair treatment in our courts of justice.

Furthermore, there is a growing lack of respect for a justice system where drug use or sale, although not generally viewed as being as dangerous or morally reprehensible as the perpetration of violent crime (e.g., robbery, assault, murder), is nevertheless prosecuted more frequently, and more consistently. We must also be mindful of the "trivialization" of violent criminal conduct, fostered by undue emphasis upon drug law enforcement and by a penal scheme which punishes drug crimes as severely or more severely than many violent crimes. In New York, for example, the sale of a $10 dollar quantity of cocaine (a Class B felony) is treated as severely as the serious felonies of armed robbery and rape, and more severely than the highest charge of assault, i.e., crimes resulting serious physical injury (a Class C felony). (59)

The inordinate concentration on street-level drug users and sellers, (generally in inner city neighborhoods, often regarded to as "high crime" areas), has resulted in the disproportionate and discriminatory impact of drug laws upon people of color throughout our nation. (60) Moreover, widespread injustice often results from the imposition of unduly harsh prison sentences upon drug offenders, pursuant to mandatory minimum sentencing statutes, even for first time offenders playing peripheral roles in the drug offenses with which they are charged. (61)

Additionally, the substantial and relentless street-level enforcement of drug laws, targeted mainly at youth populations in our inner city communities, (unmatched by efforts to reduce violent crime), has resulted in an atmosphere of police at "war" with the community, and garnering a growing disrespect for law enforcement and the perpetuation of an "us-against-them" mentality with respect to both the law enforcement community and the government which it represents.

The erosion of civil liberties tolerated in the name of the "war on drugs," has become so extreme that some commentators have gone so far as to claim that "[t]he Bill of Rights is in danger of becoming meaningless in cases involving drugs." (62)

The perceived imperative of waging the drug war has twisted constitutional protections against unreasonable searches and seizures by state officials beyond all recognition, setting an ominous precedent for the widespread violation of individual rights which inevitably extends to other governmental activities. What might be called the "drug exception" to the Constitution threatens the civil liberties of every citizen, since precedents set in the context of a drug case are later cited to justify limitations of civil rights in other contexts. As has been further noted:

"The Supreme Court has permitted warrantless searches of automobiles, the use of anonymous tips and drug-courier profiles as the basis for police searches, and the seizure of lawyers' fees in drug cases. Property on which marijuana plants are found can be forfeited even if the owner is charged with no crime." (63)

Also subject to continuing erosion are our citizens' rights to privacy in the name of the "drug war," represented by unwarranted and unjustified drug testing of employees, property searches of children, and other intrusions into the lives of individuals not otherwise implicated in any criminal conduct so as to justify such intrusions. For example, all federal employees are required to submit to urine testing. (64) Such testing has also become commonplace in private industry, not otherwise confined by constitutional limitations but, nevertheless, encouraged by governmental policies.

Serious "due process" and moral implications arise through increased use of civil forfeiture laws, where innocent families are deprived of substantial assets and, at times, their homes, due to acts of a single household member, in which they had no involvement and over which they had no control. For example, the elderly mother of a drug dealer, who personally has not participated in any illicit activities, may be evicted from her home on the grounds that drug related activities were taking place under her roof. Under these circumstances, the government need only show that there existed reasonable grounds to believe the property was subject to forfeiture -- i.e. that the home was being used for illicit drug dealing activities. The burden of proof then shifts to the owner (or lessee) of the property to prove by a preponderance of the evidence that the property is "innocent". (65) Meanwhile, innocent family members of suspected drug dealers may be rendered homeless.

Furthermore, there appears to have developed a trend towards penalizing innocent property owners, where the government, unable to succeed in its objectives through its own failed policies, has begun to shift obligations and responsibilities for eradicating drug activity to private citizens. For instance, in some jurisdictions, owners of residential apartment buildings may be deprived of their property through failure to evict suspected drug dealers or users, even where the government, with its law enforcement and prosecutorial powers, has been unable to convict such individuals of any criminal activity. (66)

In summary, punitive, draconian, and often irrational approaches to drug policy have, over time, caused unwarranted encroachments upon the civil rights of those within our borders. (67) These are often represented by exceptions to rights embodied in the U.S. Constitution, including rights guaranteed under the Fourth Amendment and the right of individuals to "due process of law," in diverse areas and at various levels of governmental involvement. (68)

Therefore, to preserve the integrity of government itself, particularly impacted by our nation's drug policy, we must reassess our goals (which must be realistic), the purpose and values implicit in those goals, as well as the means and policies by which we hope to achieve betterment of our society. In reassessing the appropriate direction for future drug policy, we must first acknowledge that a drastic change in thinking and approach is clearly called for. Our government's continued pursuit of a failed, punitive policy, which serves not to provide help and aid to those in need of assistance, but rather, to "criminalize," "marginalize" and "alienate" growing numbers of its population, ultimately causes more harm than good, garners disrespect for its institutions, and raises the question of its ability to fairly and effectively govern.

Accordingly, we must set out on a course to devise a policy which inspires confidence for positive and meaningful progress in combating substance abuse, violence, and other related problems in our society. In embarking on such path, we would do well join with the medical profession in adherence to the "Hippocratic oath," which in its most common form of expression instructs: "First, do no harm".