a Casualty of the War on Drugs?"


President, The Criminal Justice Policy Foundation
2000 L St. N.W., Suite 702
Washington, D.C. 20036
Tel. 202-835-9075
Fax. 202-223-1288

 Remarks prepared for delivery to the
92nd Annual Convention
Aspen, Colorado
September 14, 1990
(Revised, November 5, 1990)

     Good afternoon.  I'm going to talk to you this afternoon about the
"war on drugs" and its effects on the Bill of Rights.  There isn't any
question that drug abuse is one of our nation's most serious public
health problems.  In some instances, drug abuse can cause birth defects
in babies, mental retardation and learning disabilities in children,
mental illness in teenagers and adults, as well as death and suicide.
Addiction to tobacco causes at least 300,000 deaths a year and billions
of dollars of economic losses. Abuse of alcohol causes some 100,000
deaths per year, and thousands more crippling injuries.

     The criminal traffic in drugs usually involves violence and murder,
bribery, and tax evasion.  Many drug addicts commit theft, fraud,
burglary or robbery to get the  money to buy expensive drugs. There is a
tiny criminal traffic in alcohol, and crime committed to buy alcohol, in
contrast to crime committed under the influence, is not great.
Obviously, drug abuse and drug trafficking are very serious problems.

     This afternoon I'm going to be critical of our war-like approach to
the drug problem.  But that doesn't mean that I think drugs are good.  I
don't.  I don't think we can win the "war on drugs," but that doesn't
mean we can't be a lot more effective in dealing with the drug problem.
Basically, we have to manage the drug problem -- that is, the
distribution has to be regulated and policed and subject to the forces of
law and order.

     The war on drugs is a war on all of us.  Who is the enemy in the war
on drugs?  It is not the drugs because the drugs are mere chemicals.  We
have a war on drugs no more than we have a war on carbon dioxide.

     In the eyes of the government, the obvious enemy is everyone who
uses illegal drugs, and everyone who gives them aid and comfort.  Of
course, the obvious enemy includes everyone who buys drugs, who sells
drugs, who transports drugs, who grows marijuana.

     But there are hidden enemies.  The hidden enemy is every person not
actively working to purge drug users from our society. The hidden enemies
include the employers of people who may use drugs if the employer fails
to adopt steps to root out drug users -- even if employees are competent
and perform well.

     The hidden enemy is every parent of a drug user who fails to turn
their child over to the police or fails to use every means to coerce
their child into stopping his or her drug use.

     The hidden enemy is every lawyer who represents a person accused of
violating the drug law.

     The hidden enemy is everyone who makes or exhibits a motion picture
that makes jokes about drug use.  The hidden enemy is every merchant who
sells cigarette rolling papers. The enemy hidden is every radio station
that plays rock 'n' roll from the 1960s and 70s.

     The hidden enemy is our next door neighbor, our bowling buddy or
golfing partner, our mail carrier, our secretary, our spouse. We are the
government's hidden enemy.

     When you have a hidden enemy, you need to use extremely powerful
weapons.  As in Vietnam, when you can't find the hidden enemy, sometimes
weapons are used that injure the innocent.  A foundation of our system of
justice is that it is to protect the innocent.  That foundation has been
filled by the termites of the war on drugs.

     This afternoon let's examine the weapons being used by the
government against its enemies in the war on drugs and examine the
casualty list.

     It is my thesis that among the most tragic casualties in the "war on
drugs" are our constitutional liberties.  To start, let's go through the
Bill of Rights in the Constitution one-by-one to see how they have been
affected by the war on drugs.

The First Amendment:

     The First Amendment:  "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..."  "What does the
First Amendment have to do with drugs?" you ask.

I want to bring two examples to your attention:  the first is the
decision of the United States Supreme Court, Employment Division of
Oregon v. Smith (--U.S.--, 110 S.Ct. 1595, No. 88-1213, April 17, 1990).
In that case two Native Americans were discharged from employment in the
drug treatment program for which they worked because they used peyote as
part of their participation in the religious practices of the Native
American Church.  Peyote is the sacrament in that church.  They applied
for unemployment benefits after they were fired, and the State of Oregon
turned them down. The Oregon Supreme Court, however, found that as
participants in the Native American Church they had a right to use
peyote, and said they were entitled to benefits.

     But the Oregon Attorney General, Dave Frohnmeyer, Republican
candidate for Governor, saw the case differently.  In his view, the war
on drugs can not tolerate drug use.  If a drug treatment program demands
a "drug-free" staff, Native Americans who worship with their sacrament
ought to be fired.  And an appropriate government weapon in the war on
drugs is to deny such people unemployment benefits.

     Notwithstanding well settled Supreme Court precedents that denial of
these benefits impermissibly restricts the free exercise of religion,
Attorney General/gubernatorial candidate Frohnmeyer appealed to the U.S.
Supreme Court.

     It is important to stress that peyote is the sacrament in the Native
American Church -- it is used by over 250,000 Native American
worshippers.  They don't consider it a drug anymore than Catholics think
of communion wine as a drug, or as a refreshing beverage.

     The Supreme Court, 5 to 4, reversed the Oregon Supreme Court, and in
the process threw out the long-standing doctrine that a State's burden
upon the free exercise of religion can only be justified by a State
"compelling interest" that cannot be served by less restrictive means
(Sherbert v. Verner, 374 U.S. 398, 406 (1963), Cantwell v. Connecticut,
310 U.S. 296 (1940)).  Consider the background:  the respondents were
never prosecuted by Oregon for their use of peyote.  There is no evidence
that anyone has ever been harmed by the religious use of peyote.  23
States and the Federal government exempt the religious use of peyote from
the Controlled Substances Act.  Indians who use peyote as part of the
Native American Church are less likely to abuse drugs or be alcoholic
than those who do not.

     Here is a case where use of a religious sacrament, because it has
been classified by law enforcement authorities as a drug, but
nevertheless an essential component of the way in which people worship
and have worshipped for hundreds of years, became the basis for denying
unemployment benefits.  From the perspective of the international, multi-
billion dollar war on drugs, this case was totally insignificant.  Unlike
crack or heroin, the use of peyote is not destroying people, their
families, or cities like New York, or nations like Colombia.

     Most importantly, this case was a purely a symbolic battlefield in
the war on drugs.  Yet this totally insignificant drug case became the
occasion for restricting the religious freedom of all Americans by
narrowing the applicability of the Free Exercise clause.  Justice
Blackmun wrote ironically in his dissent, "One hopes that the Court is
aware of the consequences, and that its result is not a product of
overreaction to the serious problems the country's drug crisis has
generated."  (Dissenting Slip Opinion at 2.)

     Justice Blackmun put his finger on the problem:  this trashing of
the Free Exercise of Religion was purely an overreaction to the drug
problem, and the Bill of Rights was a casualty.  As we will see, this
result is hardly new.

     Let's look at another way in which the First Amendment is being
undermined by the war on drugs -- in this instance, the freedom of the
press.  This summer, a magazine about drugs and the drug culture -- High
Times -- is being investigated by the U.S. Attorney in Louisiana for
aiding and abetting the illegal cultivation of marijuana.  The magazine
prints a column called "Ask Ed" that gives tips on improving marijuana
cultivation.  High Times is also being investigated for printing
advertisements for "grow lights," irrigation equipment that can be used
for growing, among other plants, marijuana, and an advertisement for "The
Seed Bank", a business in the Netherlands that would mail seeds for
growing marijuana.

     This investigation is not an obscenity case.  This is not an
investigation of an "incitement to imminent lawless action" under
Brandenburg v. Ohio (395 U.S. 444 (1969)).  This is an old fashioned
threat of prosecution for seditious writing.  This harks back to the dark
days of the 1918 Sedition Act and the prosecution of filmmaker Robert
Goldstein, sentenced to 10 years in prison for his unbecoming portrayal
of the British (then U.S. wartime allies) in a film about the American
Revolution, and the conviction of Eugene Debs for criticizing Teddy
Roosevelt's support of World War I.

     Once again, in the charged atmosphere of war, the fundamental
freedom of press is endangered.

The Second Amendment

The second amendment says, "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." Gun control advocates argue that this
amendment does not guarantee an individual right. (Quilici  v. Village of
Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863
(1983), and U.S. v. Miller, 307 U.S. 174 (1939).)  However, having been
responsible for Federal gun control legislation between 1981 and 1989 and
having read many of the law review articles on the origins and meaning of
the Second Amendment  (See e.g. Stephen P. Halbrook, Ph.D., J.D., THAT
of New Mexico Press 1984);  To Keep and Bear Their Private Arms:  The
Adoption of the Second Amendment, 1787 - 1791, 10 Northern Kentucky Law
Review 13-39 (1982) reprinted in 131 CONG. REC., 99th Cong., 1st Sess.,
S9105- 9111, July 9, 1985); The Right to Bear Arms in the First State
Bills of Rights, 10 VERMONT LAW REVIEW 255-320 (1985).), I think there is
an individual right to keep and bear some arms.  There are scores of
millions of Americans who possess a .22 rifle for target practice, a
handgun for personal or family protection, or a shotgun for hunting.
Perhaps there are a few such Americans in this room today.  I think that
such firearms possession is protected by the Second Amendment.

     But the extremism of the war on drugs manages to infringe on that
right.  If, after surgery let's say, you use your wife's Valium or your
husband's pain medication, and the prescription was not issued to you,
you are an unlawful user of drugs.  If you also happen to be exercising
your Second Amendment rights and possess a firearm in your closet or gun
cabinet, your possession of the firearm makes you, at that moment, a
Federal felon subject to a ten-year sentence and a quarter million dollar
fine (18 U.S.C. 922(g) and 924(a)(2)).  This penalty also applies to the
millions of American gun owners who use marijuana, even those who live in
states for which the penalty for possessing marijuana is a minor civil
offense as it is here in Colorado.  If you receive a shotgun for
Christmas and accept it, having twice been convicted of possession of
marijuana or another drug, you are subject to a mandatory five years in
prison (18 U.S.C. 924(c) and 21 U.S.C. 844(a)).

     The politically manufactured fear (See Kaplan, MARIJUANA -- THE NEW
PROHIBITION, (1970) 91-146, and materials cited therein.) of the
bloodthirsty maniac killer of "Reefer Madness," led Congress to prohibit
any person who was addicted to or used illegal drugs from receiving a
firearm.  The blunderbuss weapon of an overbroad law was created.  Thus,
millions of Americans, whose illegal use of drugs is a minor or technical
violation, are felons and potential casualties because of their exercise
of Second Amendment right to posses firearms.

     Incidentally, common sense is also a casualty in the war on drugs.
Prison is one place we don't want convicts to have firearms.  In 1984, a
ten year prison term was established for possessing or bringing a firearm
or bomb into a Federal prison. In 1988, Senator Phil Gramm of Texas
insisted that the penalty for bringing heroin, cocaine or LSD into prison
be raised from 3 years to 20 years.  Now possession of drugs in prison is
twice as serious as possessing a firearm or a bomb, rocket or grenade.
When the stupidity of this amendment was pointed out, the Senator's
counsel insisted that it was Gramm's contribution to the 1988 Anti-Drug
Abuse Act and it had to be in the bill. (18 U.S.C. 1791(b)(1); P.L. 100-
690, sec. 6468(a), (b).

The Third Amendment

     The Third Amendment prohibits in time of peace the quartering of
soldiers in any house.  You recall, of course, that in the 18th century
the King of England quartered soldiers in homes to keep an eye on the
unruly, disloyal colonists.  About all the King had were soldiers -- he
had few other officials to police the behavior of citizens.  Police as we
know them today were not invented until the 19th century.  Well, today
government mandated urine testing is the contemporary equivalent of
quartering troops in homes.  The disloyal person who smokes marijuana in
his home Saturday night while watching a home video, who is urine tested
by government order on Tuesday, suffers the same degrading, invasive
surveillance as if the King's soldier were sitting there in the living
room monitoring the citizen's private activity.

     Now the government uses infra red cameras in military satellites
designed to find the hot engines of enemy vehicles moving at night to
look over houses in America to find those that show up as excessively
warm.  This evidence is used for obtaining records of electricity use to
see if someone might be growing something indoors that he or she
shouldn't be.  Now instead of merely stationing soldiers in homes, the
war on drugs uses "Buck Rogers" weapons -- the technology of 21st century
warfare -- to look right through the ceiling into our homes.  The privacy
from military surveillance embodied in the third amendment is another

The Fourth Amendment

     The Fourth Amendment states that "The right of the people to be
secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated."  Then the amendment spells
out the procedure for issuing warrants.  Every member of this audience
who practices criminal law knows that every interpretation of this
amendment that ever extended the "right of the people to be secure" has
been reversed in the 18 years since President Richard Nixon declared war
on drugs.  From the first days of the war on drugs, new exceptions to the
warrant requirements, to the probable cause requirements, to the
particularity requirements, have been created -- and almost all of these
have been in drug cases.  Those of you who do not practice criminal law,
who studied criminal procedure in law school ten or fifteen years ago
would be shocked.  Lead cases you knew such as Aguilar v. Texas (378 U.S.
108 (1964)), and Spinelli v. U.S. (393 U.S. 410 (1969)), are gone,
overruled in drug cases, rationalized by the exigencies of the war on
drugs.  (See e.g. Wisotsky, Exposing the War on Cocaine:  The Futility
and Destructiveness of Prohibition, 1983 WISCONSIN LAW REVIEW 1305, 1418-

The Fourth Amendment has been so watered down that the search of a person
for evidence of drug use -- without any evidence of drug use, without any
individualized suspicion -- is, in the words of Justice Scalia, "a kind
of immolation of privacy and human dignity in symbolic opposition to drug
use." (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109
S.Ct. 1384 (No. 86- 1879, March 21, 1989)).

     By this time, you must be wondering if the Bar Association turned
this program over to some radicals who cooked up the inflammatory title,
"Is the Bill of Rights a casualty of the war on drugs?"  Well, a fairly
conservative newspaper, USA Today, on November 15, 1989 entitled its
lead, cover story "The War on Drugs- -Are Our Rights on the Line?"  On
the cover was a photograph of the Broward County, Florida Sheriff
manufacturing crack cocaine to sell in stings of drug buyers.  The
subheadline is "Some Worry Police Out of Control."  The story begins,

     "As the war on drugs intensifies, there is growing 
     concern that the battle is claiming an unintended victim, 
     our Constitutional rights.  Emboldened by recent Supreme 
     Court rulings, police across the U.S.A. are adopting 
     aggressive tactics including neighborhood sweeps, no- 
     knock searches, reverse stings and property seizures. 
     'I've lived through a lot of crime crises but we've never 
     gone out of control like this,' says University of 
     Michigan law professor Yale Kamisar, an expert on police 

          "In Detroit, police raided a food market in a drug
     neighborhood, held the owner and seized his profits after 
     dogs sniffed cocaine on three one dollar bills in his 
     cash register.  Quoting Denver Federal Judge Richard 
     Matsch, a Nixon appointee, 'I wonder where the United 
     States is headed.  My concern is that the real victim of 
     the war on drugs might be the Constitutional rights of 
     the American people.'"

     The Fourth Amendment, in its requirement that warrants "particularly
describe" the place to be searched and the objects of the search requires
that the information that sustains a search be recent, Rugendorf v. U.S.
(376 U.S. 528 (1964)), Sgro v. U.S. (287 U.S. 206 (1932)).  If an
informant tells a police officer, "You know, it seems to me that last
winter I remember that Joe had some marijuana on the table in his living
room," it is not permissible to rely on that information as the basis for
a search today to find marijuana.

     Now consider the case reported in the article in USA Today, from
Hudson, New Hampshire.  At 5:00 a.m., August 3, 1989, police came to the
home of Bruce Lavoie, 34, a machinist with a wife and three children.
Without announcing themselves and without evidence that Lavoie might be
armed, police smashed the door with a battering ram.  Police had a search
warrant based in part on an informant's tip that was 20 months old.  "As
he rose from his bed, apparently resisting the intruders, Mr. Lavoie was
fatally shot as his son watched.  A single marijuana cigarette was

     The casualties are not just abstractions, they have children, now
orphans, who will never feel their father's hugs again, all innocent
victims of the war on drugs.  Incidentally, pickets later defending the
police use of deadly force carried signs reading, "Druggies have no

The Fifth Amendment

     The Fifth Amendment sets forth many rights and procedures including
the prohibition against depriving any person of "life, liberty or,
property, without due process of law."  In the 1986 Anti-Drug Abuse Act,
Congress created a scheme of mandatory sentences in drug cases (which I
played a major part in drafting). Two levels of mandatory sentences were
set forth for transactions in quantities of drugs greater than certain
threshold quantities which was intended to give U.S. Attorneys the
direction to focus on the highest level traffickers, and not waste time
on the small fry.  Unfortunately the enacted thresholds, as watered down
by the Senate and in conference, are no longer based on the realities of
the drug marketplace.  They were adopted without consideration of their
effect in sentencing real defendants, without consideration of the effect
on prison populations, and without study of their potential effectiveness
in deterring drug trafficking or drug use.

     Now those mandatory penalties are used to coerce plea bargains.
They give prosecutors the power to say, "Here's your choice:  I can
charge you with this offense which carries a mandatory sentence.  If you
go to trial and you lose, you will get a mandatory 10 years without
parole up to life imprisonment for a first offense (21 U.S.C.
841(b)(1)(A).  (Congress specifically prohibited parole in these kinds of
cases.)  Alternatively, if you plead guilty to this lesser included
offense which only carries a maximum of 20 years, cooperate with us by
becoming an informant for us, we'll recommend a lower sentence in the
guidelines such as five years or something like that (21 U.S.C.

     Very simply, faced with that kind of choice, a guilty pleas is
coerced, and the fifth amendment protection against denial of due process
of law is lost.

     Let's think of another example of the erosion of the fifth amendment
protection.  Due process in criminal cases includes the presumption of
innocence, In re Winship (397 U.S. 358, 90 S.Ct. 1068 (1970)).  However,
in drug cases, Congress granted to the government the power to seize the
property of suspects in advance of trial.  Indeed, in advance of
indictment (21 U.S.C. 853(e)).

Another way in which due process is denied and the accused are unable to
get a fair trial in some drug cases is by means of the "megatrial."
Under the continuing criminal enterprise section of the Controlled
Substances Act (21 U.S.C. 848) and RICO, the Racketeer Influenced and
Corrupt Organizations Statute (18 U.S.C. 1961), there are monstrous
trials, in which a score of defendants are tried together in dozens of
counts of indictments alleging hundreds of different acts.  Former Chief
Judge Jack Weinstein of the Eastern District of New York in his opinion
in U.S. v. Gallo spelled out how putting many defendants together in a
"megatrial" undermines the presumption of innocence (National Law
Journal, Dec. 7, 1988 at 13).  If the government accuses twenty Italian-
American men with being members of an organized crime family and requires
them to sit together at the same table in a courtroom for half a year and
presents a continuous stream of testimony about conversations between and
about Italian surnamed citizens, what jury isn't going to believe that
they are all members of the "Mafia?"  Even when the evidence only applies
to a few defendants, the innocent defendants are the victims of
"spillover prejudice."

     Another megatrial, the "Pizza Connection" heroin trial (U.S. v.
Badalamenti) in New York, lasted over 17 months.  There were something
like 21 defendants.  The name of one defendant was not mentioned in the
evidence or testimony until six months had elapsed.  How does someone
defend oneself in a megatrial?  How can a jury process evidence in a
complex trial that takes 17 months and sort the truth from the lies in
dozens of counts?  How can due process of law be said to exist in that
situation?  Yet these abuses are being tolerated in the prosecution of
the war on drugs. The casualties include thousands of accused (including
some who are innocent) with good defenses, who rightly feared that the
risk of conviction coupled with mandatory penalties made a negotiated
guilty plea look more attractive.

The Sixth Amendment

     The Sixth Amendment, among many specific rights, guarantees that
"the accused shall enjoy the right ... to have the assistance of counsel
for his defence."  Yet even such a fundamental right is under attack by
the government and the courts in the course of the war on drugs.  In U.S.
v. Morrison (449 U.S. 361 (1981)), Drug Enforcement Administration
special agents knowingly met with the defendant, without counsel being
present, to denigrate counsel's ability and threaten conviction, thus
invading and undermining the lawyer-client relationship.  Yet the Supreme
Court said a sixth amendment violation could not be established without a
"showing of prejudice" to the outcome (in effect requiring the defendant
to lose) -- thus weakening the protection of an individual's right to

     Congress has also joined the assault on the right to counsel. It
gave prosecutors the power to seize the fees of the attorneys who
represent the accused in drug cases.  Justice Blackmun in describing this
law said "Had it been Congress' express aim to undermine the adversary
system as we know it, it could hardly have found a better engine of
destruction than attorney's-fee forfeiture." Caplin & Drysdale, Chartered
v. U.S. (dissenting opinion, 109 S.Ct. 2667, 2674 (1989)).

     In order to seize those fees, the government has begun to issue
subpoenas to defense attorneys about their fees.  This forces the defense
attorney to become a witness in the government's forfeiture case, and
forces the attorney to withdraw as counsel. This has been found to give
the government the ability to eliminate highly competent counsel from
trying certain cases.

     Another frightening example is that the government is demanding and
attempting to force attorneys to provide it with evidence against their
clients in circumstances rationalized by the war on drugs, but which
involve all types of cases.

     This is the background:  under the Currency and Foreign Transaction
Reporting Act of 1970 (also known as the Bank Secrecy Act, 31 U.S.C. 5311
et seq.), if you went to a bank and made a $10,000 or larger cash
transaction, the bank had to report that transaction to the Treasury
Department.  But if you bought a large ticket item like a car and paid
cash, that did not have to be reported to Treasury.  Now the Internal
Revenue Code of 1986 (26 U.S.C. 6050I) requires all such cash
transactions to be reported to IRS.  It enables the government to get
intelligence about people who buy a Mercedes-Benz with $55,000 in cash.
Then the government specifically applied this reporting requirement to
criminal defense lawyers.  The special tax return under this section
requires extensive detailing of who the customer is and the nature of the
transaction.  Look at how this works for lawyers and their prospective

     Let's assume that you believe that you may be under surveillance or
investigation by the government.  You keep hearing mysterious clicks on
your telephone, and you think you are being followed.  You go to a famous
criminal defense attorney for advice and possible representation, and she
wants $10,000, by no means an unheard of fee.  You borrow a few thousands
dollars from three or four close friends and relatives, you pawn your
stereo, and pay the attorney the $10,000 in cash you've collected.  The
attorney however sends the required form to the Internal Revenue Service
about you.  You haven't been indicted.  You don't even know if you're
being investigated.  Your attorney sends government investigators a form
saying, "My name is Mary Smith, famous criminal defense lawyer.  I've
just been retained by Mr. Jones, who paid me $10,000 in cash to represent

Does anybody doubt that lights and bells will go off at the IRS when that
report comes in?  Of course they will.  If there is no investigation
pending on Mr. Jones, IRS or another Federal agency will put an agent on
him right away.  The Anti-Drug Abuse Act of 1988 (sec. 7601(b)) created a
major exception to the usual rule of confidentiality of income tax
information to permit the return filed under 26 U.S.C. 6050I to be turned
over to any Federal law enforcement agency (26 U.S.C. 6103(i)(8)).  How
can the traditional protection of counsel of choice and the right to have
counsel continue to exist if counsel are put in the position of becoming
informants against their own clients?

     The Washington Post reported on November 15, 1989, that nine hundred
letters had been sent to criminal defense lawyers around the country by
IRS saying, "We want more information about your clients."  Quite
justifiably, criminal defense lawyers are in an uproar -- but so should
everyone who values the Sixth Amendment right to counsel.

     The war on drugs has also become the pretext for an assault on the
criminal defense bar itself.  Sentencing of Federal defendants is
pursuant to guidelines promulgated by the U.S. Sentencing Commission, but
a judge may impose a sentence lower than the stated guidelines by stating
the reasons.  However, a court can impose a sentence below a statutory
mandatory minimum sentence (which Congress has created almost exclusively
for drug cases) only upon the motion of the prosecutor that the defendant
provided "substantial assistance in the investigation or prosecution of
another person who has committed an offense." (18 U.S.C. 3553 (e)).

     Consider the temptation upon the defendant awaiting sentence in such
a drug case to find somebody, anybody, who they can inform against, in
order to induce the prosecutor to move for a sentence reduction below the
mandatory 5, 10 or 20 years.  In fact, many defendants are secretly
encouraged by the government to attempt to incriminate their own defense

The Seventh Amendment

     The Seventh Amendment guarantees that "In suits at common law, where
the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved."  If you think about it a second, this right
is essential for protecting other rights.  If you want to bring a Federal
civil rights case, for example, you have a right to a jury trial under
the Seventh Amendment.  If you are the victim of an environmental hazard,
or product liability, or any kind of case in which you have been harmed,
you have a guaranteed opportunity to sue.

     The Sixth Amendment guarantees that criminal trials must be
"speedy," consequently they have priority over almost every other matter.
Recently a Federal Magistrate in Los Angeles told me that in the United
States District Court for the Central District of California, the volume
of drug cases is so great the judges are concerned that soon they will be
unable to try any civil cases. The number of attorneys in the U.S.
Attorney's criminal division has just been doubled which promises a new
influx of drug cases, but few new judgeships are being created.  The
Supreme Court of Vermont declared a six month moratorium on all civil
jury trials. (Administrative Directive #17, "Temporary Postponement of
Civil Jury Trials."  January Term, 1990.  Signed by all 5 justices on
January 11, 1990, effective January 22, 1990.  All civil jury trials for
which jurors have not been drawn are postponed until after July 1, 1990.
The moratorium was amended on March 28, 1990 when it appeared that the
legislature would appropriate additional funds.)  Many other federal and
State courts are in a similar bind.

     How can your right to a civil jury trial -- any kind of civil
litigation -- be maintained if the docket is jammed with drug cases?
Obviously, that right is lost.

The Eighth Amendment

     The Eighth Amendment guarantees that "Excessive bail shall not be
required,...nor cruel and unusual punishments inflicted." In 1984, in the
Comprehensive Bail Reform Act, the Congress said that in most felonious
drug cases (see 21 U.S.C. 841(b)), there is a rebuttable presumption that
defendants are dangerous to the community and can be held without bail
(18 U.S.C. 3142(e)).  Those provisions are being used throughout the
federal court system to detain accused persons before trial.  This
undermines their ability to work on their defense, to assist their
counsel and to obtain a fair trial.

     Regarding the prohibition against cruel and unusual punishment:  The
Supreme Court has struck down, as cruel and unusual punishment, the death
penalty for crimes that do not involve an intent to kill (Coker v.
Georgia, (433 U.S. 584, 1977, rape); Enmund v. Florida (458 U.S. 782,
1982, co-defendant in a robbery and murder); Cabana v. Bullock, (474 U.S.
376, 1986, instructions to jury require finding an intent to commit
murder).; cf. Tison v. Arizona (481 U.S. 137, 1987).

     However, on June 28, 1990 the Senate, by a 66 to 32 vote, adopted
the D'Amato amendment to S. 1970 providing for the death penalty for a
person convicted of any drug violation committed as part of a large scale
continuing criminal enterprise (21 U.S.C. 848(b) and (c)(1) (involving
for example 30,000 kilograms of marijuana, or only 1.5 kilograms of
cocaine base, 300 grams of LSD, 30 kilograms of heroin, etc.), even where
no homicide has been committed.  While these are significant quantities,
by no means are they earth-shaking quantities.  And considering the
purity of the drug is not considered, a mid-level operative may be
chargeable with a capital offense.  When it comes to fighting the war on
drugs, the Senate is prepared to inflict punishments the Supreme Court
has held are cruel and unusual.  Only the presence of controversial
amendments to ban semi-automatic assault weapons and a provision in the
House crime bill to allow the introduction of evidence of racial
disparity in the imposition of the death penalty, combined with the
exhaustion of Congress in the October 1990 budget deadlock, resulted in
the elimination of these death penalty provisions in the enacted
legislation (S.3266).

Unless the political climate is forced to change, it is only a matter of
time before the death penalty for these types of offenses will be
imposed.  (Parenthetically, the U.S. Supreme Court heard oral argument on
November 5, 1990 in Harmelin v. Michigan (No. 89-7272), on the question
of whether the Michigan law requiring a sentence of mandatory life in
prison without possibility of parole for the simple possession of more
than 650 grams of cocaine constitutes cruel and unusual punishment.  The
only other offenses in Michigan which carry the same sentence are first
degree murder, as well as possession of cocaine with intent to deliver,
and distribution of cocaine.)

The Thirteenth Amendment, The Fourteenth Amendment

     Let me skip the Ninth and Tenth Amendments for a moment. The
Thirteenth Amendment prohibits slavery and involuntary servitude, and the
Fourteenth Amendment, guarantees equal protection of the laws.  Those
amendments have been read to prohibit government behavior which continues
the badges of slavery -- the treatment of African American citizens as
second class citizens (See City of Memphis v. Greene, 451 U.S. 100, 126
(1981).  When the police get the license to crack down on suspects as
part of the war on drugs, in what community do they stop people without
any cause whatsoever? In what communities do the drag nets take place?
You know the answer. Overwhelmingly, it is in minority communities.  The
Los Angeles Times ("Blacks Feel Brunt of Drug War", April 22, 1990, p.1)
has shown that this is the case throughout the nation.

     Consider the National High School Senior Survey of the National
Institute on Drug Abuse shows white youth use drugs at higher rates than
black youth.  However, the U.S. Office of Juvenile Justice and
Delinquency Prevention reported that minority youth detained for drug
offenses increased by 71 percent between 1983 and 1985.  The rate of
detention of white youth was stable. This is typical of how the burden of
enforcement of the drug laws is inflicted on Blacks, Hispanics and Native
Americans.  Even though many more pregnant white women use cocaine than
pregnant Black women, 80% of all of the arrests of women for endangering
their fetus or delivering cocaine to their fetus are of Black women.

     The spirit of the 13th and 14th Amendments is violated everyday
because the police are carrying out the war on drugs much more heavy
handedly in communities of color.  Equal protection of the law is being

     Returning to the Bill of Rights.

The Ninth Amendment

 The Ninth Amendment provides that "The enumeration in the Constitution
of certain rights shall not be construed to deny or disparage others
retained by the people."  What are those other rights?  Those are every
other right.

     Now, when we think about rights, let's ask, "where do rights come
from?"  Do our rights come from Constitutional amendments? Are those our
only rights?  Or does the existence of our rights precede the First
Amendment?  Wasn't it the Declaration of Independence said that "we hold
these truths to be self evident" -- that we are "endowed by our Creator
with certain unalienable rights?"

     Those rights don't flow from Congress.  Uncle Sam doesn't give us
our rights.  We had our rights before the government was created.

     Consider the right to vote.  The Fifteenth and Nineteenth Amendments
to the Constitution say that the right to vote shall not be abridged on
account of race or on account of sex.  Did those rights come into
existence because white males suddenly thought it would be a neat idea to
give those rights to the rest of us?  Did those rights come into
existence because Congress finally decided to vote for them?  No.  Those
rights always existed.  They were not recognized by the society.  But
those rights were always there. Was it Black Americans or women that
changed in 1870 or 1920?  No, society changed -- it recognized that a
right which existed, the exercise of which was being denied, must now be
guaranteed. Society's recognition of our rights is slow, it evolves.

     I argue that there is a right to use drugs.  Last night a few of you
drank alcohol -- a drug.  Today, a few of you have used nicotine, a drug.
We don't urine test people to prevent them from using nicotine.  We don't
lock up the nicotine dealers.  Most of us have had caffeine today, a very
powerful central nervous system stimulant.  We drink it in very carefully
measured dosages, usually in common six ounce ceramic cups or ubiquitous
styrofoam cups. Coffee cups are drug paraphernalia.  A wine glass, a beer
bottle, they are drug paraphernalia.  An ashtray is drug paraphernalia.

     We use drugs in our society legally and illegally to an enormous

     Why are the drug laws violated by tens of millions of our fellow
citizens?  Because they intuitively know that they have a right to engage
in conduct that gives them pleasurable sensations even though it is
prohibited -- that those laws are unjust.

     Many of us in this audience, probably a majority, recognize a
woman's right to control her reproductive freedom, to control her
reproductive tissues, to control her womb.  How is the right of all us to
control our brains any less?  Don't we have a right to control our
cerebral tissue?

  To say that exercise of personal control over something so
intrinsically personal as one's brain and central nervous system is not a
right reserved under the Ninth Amendment means that the Ninth Amendment
is almost meaningless.

The Tenth Amendment

     The Tenth Amendment says that "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."

     The powers not delegated to the United States by the Constitution
are reserved to the people.  Where is the power in Article I, Section 8
of the Constitution that allows Congress to say, "We declare that your
brain is off limits to you.  You cannot use those cells in your brain
that opium can affect, or that marijuana stimulates.  Your brain is not
really yours to control. The space between your ears -- that's not really
yours to control. We're the Congress.  That's our space.  You are
prohibited from using your brain in unapproved ways."  Is this a power
that the Congress has?  If so, where did it get it and when?

     Let's think about the First amendment broadly for a moment, and
think about the policy that underlies the First Amendment. Ultimately,
the First amendment is designed to guarantee our right to make up our
minds.  ("Those who won our independence believed that the final end of
the State was to make men free to develop their faculties . . . .  They
valued liberty both as an end and as a means.  They believed liberty to
be the secret of happiness and courage to be the secret of liberty. . .
." Whitney v. California, 274 U.S. 357 (1927) (concurring opinion of
Justice Brandeis, joined by Justice Holmes, 274 U.S. at 375).  Brandeis
defended the "freedom to think as you will and to speak as you think" as
"indispensable to the discovery and spread of political truth. . .." (274
U.S. at 375).)

     How do our minds work?  As you hear me speaking or if you read this,
there are biochemical changes taking place in your brain. That's what's
happening.  Your brain is changing chemically.  If you remember what I
say or wrote, your brain has been permanently changed.
     In fact, what I'm saying is more dangerous than any drug you can
take -- much more dangerous.  You might get angry at your members of
Congress for deliberately or carelessly embracing a policy that
systematically degrades your hard won freedoms and liberties.  You might
protest or take action and challenge the government.  Even though what
I'm saying is very dangerous because it's affecting your brain, and
affects your ability to make up your mind about drug laws, what I'm
saying is protected by the First Amendment.

     Do you have a right to listen or a right to read?  Even though the
First Amendment doesn't explicitly say "the freedom to listen shall not
be abridged", isn't it obvious that you have a right to listen.  If so,
in material terms you have a right to chose to have your brain changed by
what you want to listen to or what you read.

     Two centuries ago the King of England did not try to prevent
Americans from directly using their brains.  He did what he could do,
which was to punish seditious speech and treasonous writings -- things
which profoundly influenced the minds of revolutionaries through the
chemical changes they caused in their brains.

     Today, we know how the brain functions as a biological processor of
chemicals.  But since Congress has by law acted to intervene in your
choice of brain-effecting chemicals, forbidding you from choosing certain
drugs that millions of Americans desire, we must ask, "What is Congress'
constitutional power for doing this?"

     Congress' legislative powers are set forth in Article I, Section 8
of the Constitution.  The authority to ban drugs is no longer based on
the power to tax, as it was from 1914 until 1970. Congress now asserts
its power to forbid the use of drugs in the Controlled Substances Act
(21 U.S.C 801; titles II and III of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Public Law 91-513.) is based on it's
power to regulate interstate and foreign commerce. (United States v.
Scales, 464 F.2d 371,373 (6th Cir. 1972); United States v. Montes-Zarate,
552 F.2d 1330, 1331 (9th Cir. 1977), cert. denied, 435 U.S. 947 (1978).)
Now what, pray tell, does that have to do with your brain?

     Congress recognized that if you grew marijuana in your backyard for
your own use, there would be a very strong claim that such activities did
not affect interstate or foreign commerce. Therefore Congress asserted
that "local distribution, and possession, nonetheless have a substantial
and direct effect upon interstate commerce" and declared that it could
not "feasibly differentiate" or "distinguish" purely intrastate activity
with respect to drugs from the interstate or foreign commerce in drugs.
Therefore, it claimed jurisdiction over drugs grown in your backyard, or
always possessed by you in local, intrastate commerce. (21 U.S.C.

Consider the implications of this expansion of the Congressional power to
regulate interstate commerce.  Beginning in 1933, Congress at the urging
of President Franklin Delano Roosevelt asserted an enormously expanded
role in regulating interstate commerce.  Conservatives considered it an
almost revolutionary expansion.  Only after a number of deaths and
resignations, and the electoral sweep of 1936 was this enormously
expanded claim of Federal power under the interstate commerce clause
upheld by the Supreme Court (NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937)).

     We therefore accepted the expansion of the power of Congress to
regulate interstate commerce to the maximum.  Even if an individual's act
is trivial, that is irrelevant if it is a type of act, when cumulated
with other similar acts, might reasonably be deemed by the Congress to
have substantial national consequences. (See, e.g., Wickard v. Filburn,
317 U.S. 111 (1942); Katzenbach v. McClung, 379 U.S. 294 (1964); Perez v.
United States, 402 U.S. 146 (1971)).

     There was also created the theory that Congress could enact
prohibitions to "protect" interstate commerce.  The Fair Labor Standards
Act of 1938 excluded from interstate commerce goods made in plants with
did not meet Federal standards for wages and hours of employees.  (This
was upheld in United States v. Darby, 312 U.S. 100 (1941):  "Congress,
following its own conception of public policy concerning the restrictions
which may appropriately be imposed on interstate commerce, is free to
exclude from [such] commerce articles whose use in the states for which
they are destined it may conceive to be injurious to the public health,
morals, or welfare..." (312 U.S. at 114).)  In the 1960's Congress used
the interstate commerce power to guarantee civil rights in interstate
travel and accommodations.  (e.g. Heart of Atlanta Motel, Inc, v. United
States, 379 U.S. 241 (1964)).

     It is time to consider, where does interstate commerce end? I'm
standing here in this conference center, a facility of interstate
commerce.  I'm carrying an airplane ticket to Washington.  My pocket is
full of credit cards, tools of interstate commerce.  However, I spent the
night here, I've had a beautiful hike, I've had a couple of meals here.
Am I actually here in Colorado, or am I still in the limbo of interstate
commerce?  If I am still in interstate commerce now, when do I leave
interstate commerce?  Can I ever leave interstate commerce?  (Notably,
Justice Rehnquist suggested that "it would be a mistake to conclude that
Congress' power to regulate pursuant to the Commerce Clause is unlimited.
Some activities may be so private or local in nature that they simply may
not be in commerce.  Nor is it sufficient that the person or activity
reached have some nexus with interstate commerce." Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981) (concurring
opinion at 310).  Departing from the post New Deal line of cases he
concluded, the commerce power "does not reach activity which merely
'affects' interstate commerce.  There must be a showing that a regulated
activity has a substantial effect on that commerce." 452 U.S. at 312.
(Bold in the original, underlining added.)  So far, no other justices
have joined this argument.)

     But if I am in interstate commerce, what about those of you who have
not left your home state to come to this conference.  Are you in
interstate commerce?

     If interstate commerce can constitutionally be claimed to be the
basis for anything that Congress wants to regulate, what part of our
lives is not regulatable by Congress?  If Congress can use this power
this broadly in the regulation of our brains, then the Federal government
is omnipotent and the notion of constitutional checks and balances is

     If our brain is regulatable as interstate commerce, then certainly
our wombs and genitals are too, aren't they, and our blood, our heart,
our lips, our fingers, our eyes, and our ears? Is there any part of us
that is not in interstate commerce?

     I believe that at some point the tissues inside our skin must be
totally outside interstate commerce, or else Congress has unlimited power
to tell us to do whatever it wants us to do.

     It is this, it seems to me, that is the most dangerous heart of the
war on drugs and which strips the Ninth and Tenth Amendments of their
meaning.  Essentially the legal basis for the war on drugs depends upon
the assumption of total power by the Congress and the Federal Government
to regulate the most intimate aspects of our lives, the very dreams that
we have.  And the propaganda arm of the war on drugs has been successful
persuading us to unwittingly surrender this vital power over ourselves to
the Federal government.  Indeed the propaganda of the urgency of the war
on drugs has been so successful, many of our fellow citizens consciously
believe we must surrender ourselves for the good of the state.

     Seen in this light, the war on drugs is the corner stone of an as
yet unbuilt edifice of totalitarianism.

     Challenging the war on drugs is the most important issue facing
civil liberties and the preservation of the Bill of Rights.

     You are lawyers.  You know that aside from the questions of due
process and constitutionally required criminal procedure, the criminal
justice system is going down the tubes.  The American Bar Association
issued a special report, Criminal Justice in Crisis, which found the
criminal justice system is being overwhelmed with drug cases.  (CRIMINAL
JUSTICE IN CRISIS, American Bar Association, Section on Criminal Justice,
Special Committee on Criminal Justice in a Free Society, 1988, p.6.)  It
functions as an assembly line. No longer does individualized justice
takes place.  The attorneys - - prosecutors, defense counsel, and judges
-- are mere mechanics that keep the machine of arrest and imprisonment

     I won't discuss today the many serious costs our society is
suffering from undertaking the prohibition approach to the problem of
drugs -- the increased crime, the spread of disease, the economic price
of enriching organized crime by $100 billion per year.  I won't analyze
our national drug control strategy to explain how it cannot succeed in
stopping the cultivation and shipment of drugs into the United States.
Someone who might be indifferent to the hits taken by the Bill of Rights,
should be alarmed by the problems caused our nation by drug prohibition
because they effect everyone -- in their pocketbook, in their personal
safety, in the availability of quality health care.

     The organized bar, such as the Colorado Bar Association, is one of
the institutions in the society that is sensitive to the Bill of Rights
implications of the war on drugs.  Next year will be the bicentennial of
the ratification of the Bill of Rights. Many bar associations are
planning programs to commemorate the Bill of Rights.  Now is the time for
bar associations to begin to educate the public about the jeopardy our
heritage of liberty faces from the war on drugs.  If the bar fails to do
this, who will do it?  If no one does it, then surely the celebration of
the bicentennial of the Bill of Rights on December 15, 1991 will be a
hollow exercise.

     It should be obvious that all of these comments do not deny that
drug abuse is not a terribly tragic situation.  As is alcoholism.  As are
300,000 annual deaths from tobacco and cigarette addiction.  Those are
terrible things too.  But we are not going to solve any of these problems
by allowing the war on drugs to make our Bill of Rights into a shattered
remnant of the vital shield it once was.

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    posted by John Champagne

    © 1996 jchampag@lonestar.utsa.edu

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