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The Drug War Hits Home

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Grady McClendon, 53, his wife, two of their adult children, and two grand- children were driving a rented car through Georgia to their Florida home when McClendon made a wrong turn on a one-way street. Local police stopped him, checked his identification, and asked to search the car. He agreed. Opening suitcases and purses, the police found jewelry, a registered handgun, and ten Florida lottery tickets. Then they pulled out something they said was cocaine.

The McClendons were detained for six hours before being released, but the police kept the possessions found in the car: $2,300 in cash and items described as “instruments of drug activity and gambling paraphernalia”-that is, the lottery tickets. Eleven months later, the prosecutor finally admitted that lab tests on the alleged cocaine “came back negative.”

The prosecutor says the search was “a good stop. They had no proof of where they lived beyond drivers’ licenses. [Who does?] They had jewelry that could have been contraband, but we couldn’t prove it was stolen. And they had more cash than I would expect them to carry.”

This story, only one of the many reported by Andrew Schneider and Mary Pat Flaherty in the Pittsburgh Press, demonstrates how the tentacles of the War on Drugs are reaching out to ensnare more and more people who have had no contact with drugs.

Maxine LaPiana lost her Mount Morris, New York, home because U.S. marshals claimed that her 19-year-old son had sold marijuana to an undercover officer in the home while she was at work.

Police seized $5,000 cash from a Detroit grocery store because some of the bills had been found tainted with cocaine. According to Schneider and Flaherty, two different research organizations have found that from 80 to 96 percent of all the currency in the United States tests positive for cocaine.

Eighty-year-old Bradshaw Bowman lost his Utah farm because police found a handful of marijuana plants growing on his property near a hiking trail far from his house.

The war on drugs increasingly demonstrates the futility of efforts to prohibit people from engaging in peaceful, voluntary activities. There is an inherent problem with enforcing crime laws which entail no violence against another person: There is no complaining witness, as there is in such crimes as rape and robbery, so the police are forced to engage in undercover work, searches of private property, drug tests, wiretapping, and entrapment in order to gather evidence.

Furthermore, the chances of getting caught breaking the drug laws are so low that only draconian penalties can create a significant deterrent since the deterrent value of any penalty is roughly the severity of the penalty multiplied by the chance of receiving it. Thus, there is a certain grotesque logic to the recent Supreme Court decision upholding a Michigan law that imposed a mandatory sentence of life without parole in prison on a man convicted of possessing a pound and a half of cocaine.

Every year the police make more than one million drug-related arrests. But drug use continues. Throughout the 1980s, penalties were increased, and law enforcement got tougher. Mandatory minimum sentences were imposed. The armed services and the CIA became more active in the drug war. The prison population doubled.

For most of us, however, these things happened to someone else. Americans, frightened by the violence associated with the drug trade and the lurid stories on television, seem to endorse whatever tactics the drug warriors propose. In a Washington Post poll, 62 percent of respondents said they would be willing to give up “a few of the freedoms we have in this country” to significantly reduce illegal drug use; 52 percent said police should be able to search homes of suspected drug dealers without a warrant; 83 percent wanted people to report family members who use drugs to the police-just like in China.

This attitude of hysteria has allowed political and law-enforcement officials to expand the war on drugs into areas that affect every one of us, drug user or not. More and more employees are forced to undergo intrusive, degrading drug tests even when there is no reason to suspect them of drug use. “Drug courier profiles” allow police to stop people in public places, especially airports, and search them. Almost all those stopped are innocent: In Pittsburgh, airport police stopped and searched 527 people and arrested 49 (the number convicted is not available); in Buffalo, police charged only 10 of the 600 searched; in Denver, only 49 of approximately 2,000.

It is difficult to know how to avoid looking like a drug courier. In Tennessee, for instance, a drug agent told a judge that he was suspicious of a man because he “walked quickly through the airport.” Six weeks later, the same agent said he was suspicious of another man because he “walked with intentional slowness after getting off the bus.” Flight attendants have been known to radio ahead to have airport police detain people who don’t eat or drink on long international flights-they might be carrying drugs in their stomachs.

One rapidly growing part of the war on drugs is civil forfeiture. Under this procedure, strengthened three times in the 1980s, officials can seize property that is involved in illegal activity. The idea was to hit major drug dealers where it hurt. But use of the law is out of control. In fact, 80 percent of the people who lost property to the federal government were never even charged with a crime. Many people have lost their homes because one family member allegedly stored or sold drugs there unbeknownst to the rest of the family, or because marijuana was found growing in a distant field, or because a sick person was growing marijuana to treat the pain of chemotherapy or slow the progress of glaucoma. At the University of Virginia, three fraternity houses were seized-from their alumni owners-because some fraternity members were accused of selling drugs there.

Why have law-enforcement officials become so enthusiastic about forfeiture First, the standard of proof is lower in a civil case. In a criminal case, the prosecutor must prove the defendant guilty beyond a reasonable doubt. But a civil case requires only a preponderance of the evidence. So police may be able to keep the seized property even when they cannot get a conviction.

Second, officials profit from civil forfeiture. From 1986 to 1990, the U.S. Justice Department generated $1.5 billion from forfeiture. And it estimates that it will take in $500 million in 1991. Local police departments get a cut of this; forfeitures have paid for air conditioning for the Philadelphia police and provided the Warren County, New Jersey, chief assistant prosecutor with the use of a seized Corvette.

Perhaps the most ominous long-run consequence of the war on drugs is the government’s increased control over financial transactions. Banks are now required to report all cash transactions over $10,000, and there are rumblings about calling in large bills or issuing new currency-all to stymie the drug trade, of course. People who would like to keep their finances private will see their rights increasingly restricted.

Americans assume that there is a trade-off between civil liberties and crime control. Drug-related crime is ravaging our cities, and so we will just have to surrender “a few of the freedoms we enjoy in this country” to stop the murders. If that were the case, it might be more difficult to defend civil liberties. But, in fact, it is the war on drugs itself that causes drug-related crime, almost all of which is actually prohibition-related crime. The drug laws raise the price of drugs and cause addicts to have to commit crimes to pay for a habit that would be easily affordable if it were legal. And even more dramatic these days, rival drug dealers murder each other-and innocent bystanders-in order to protect and expand their markets. So, we are giving up our liberties in order to fight crime that is actually caused by the War on Drugs. A cynic might wonder whether restricting civil and economic liberties and expanding the power of the state is actually the point of the war on drugs.

We will never stop drug use by stepping up the drug war. We are already arresting far more people and spending ten times as much as we did to enforce alcohol prohibition. The only way to reduce the crime, corruption, and murder associated with the drug trade is to legalize “capitalist acts between consenting adults”-to recognize that what adults put into their own bodies is no business of government. Until we do, prohibition-related crime is likely to increase, and our liberties will continue to recede.

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    Mr. Boaz, executive vice president of the Cato Institute, is the author of Libertarianism: A Primer and the editor of several books, including "The Libertarian Reader" and "The Crisis in Drug Prohibition".