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“The Fourth Amendment has been virtually repealed by court decisions,” Yale law professor Steven Duke told Wired magazine in 2000, “most of which involve drug searches.”
The rise of no-knock raids and SWAT teams is one example (discussed in part one of this series), but there are others. James Bovard once wrote, for example, of the almost comically comprehensive list of suspicious “drug mule” behavior for which one can be legally detained and invasively searched at an airport. The list includes being the first person off a plane, the last person off a plane, or someone who authorities believe is conspicuously in the middle of exiting passengers. Bovard adds that federal courts have upheld detainments and searches for people who “had nonstop flights — and those who changed planes; persons traveling alone — and persons traveling with a companion; people who appeared nervous — and people who appeared too calm.”
In New York City, police have used suspicionless “stop and frisk” pat-downs to trick marijuana users into incriminating themselves. Possession of small amounts of the drug isn’t a criminal offense in the Big Apple, but publicly displaying the drug is. So when police stop a suspected pot user on the basis of nothing more than a hunch (which they now do more than half a million times per year), they ask their mark to empty his pockets. If doing so requires him to reveal a joint or small bag of pot, the cops arrest him. It doesn’t matter that pot is decriminalized, or that the offender had no intention of smoking or showing the drug in public. The number of marijuana-possession arrests in New York City has consequently exploded, from 900 in 1992 to more than 40,000 in 2009.
In many areas of the country, police are also now conducting “administrative searches” at bars and clubs. These obvious searches for criminal conduct are cloaked as regulatory inspections, which conveniently gets around the need for a search warrant. Police in some cities, including New Haven, Atlanta, Orlando, and Manassas Park, Virginia, have sent huge SWAT teams into bars, nightclubs, even barbershops, under the pretense of verifying that the bar is complying with various administrative regulations. They then search the entire place, including the persons of customers and employees, for illegal drugs.
For 20 years now, America’s absurd, drug-war inspired civil asset-forfeiture laws have operated on the legal fiction that property can be guilty of a crime. The mere presence of an illicit substance in a person’s home or car allows the government to seize his property, sell it, and keep the proceeds. The onus is on the accused to prove he obtained his property legally, and the cost of fighting the state in court can often exceed the value of the property cops have taken. They don’t even need to actually find any drugs. The government has seized and kept money under the absurd argument that merely carrying large amounts of cash is indicative of criminal activity. That money then goes to buy new cop cars, exercise equipment for the police station, plane tickets for training conferences or junkets for cops and prosecutors, and, in one of my personal favorite anecdotes, a margarita machine for the DA’s office.
The drug war has undermined the rule of law in less-obvious ways, too. As was the case with alcohol prohibition, and is the case with the prohibition of any consensual activity, the people who are asked to police those crimes often have to break the very laws they’re enforcing. The presence of large sums of unaccounted money can be tempting and corrupting for cops, and there are plenty of stories of police officers lured into the drug trade. But the drug war breeds corruption in more mundane ways, too. Politicians and prosecutors like to tout their successes with statistics — they want lots of arrests, big busts, and lots of drug seizures.
The temptation for cops to take shortcuts on their way to a big bust looms large. We saw this in Atlanta in 2006 when, during a botched drug raid, police shot and killed 92-year-old Kathryn Johnston. Subsequent investigations revealed not only that police in that case had lied about nearly every aspect of the Johnston case, but that lying on search-warrant requests was common among Atlanta’s narcotics cops. Following the rules simply took too long for cops facing pressure to meet monthly drug-arrest quotas.
The cops in the Johnston case also lied about their use of a confidential informant, another common temptation in drug policing. Police abuse of the drug-informant system led to the high-profile scandals in Tulia and Hearne, Texas, as well as other scandals in St. Louis and Cleveland and at the FBI. The use of street informants is bad enough. But there’s also the problem of jailhouse informants, convicts facing long sentences who testify against drug suspects in exchange for a reduction in their time behind bars. Despite the obvious shortcomings in their trustworthiness — they are cons who have everything to gain and nothing to lose by lying — countless innocents have been wrongly convicted on the word of jailhouse snitches.
The inherent problems with the informant system have fostered growing distrust and contempt for law enforcement, giving rise in some cities to the “Stop Snitch’n” movement, which encourages citizens to never cooperate with police under any circumstances, not even during the investigation of violent crimes. And so we now have yet another ongoing American tragedy wrought by the drug war: there are entire communities in the United States that have completely given up on the people charged with protecting them. Many people understandably find the “Stop Snitch’n” movement repugnant, but it’s important to understand its context. There are places in America where the drug war has completely eradicated all respect for the law, even among citizens who aren’t involved in the drug trade.
By now most people are familiar with the basics of the medical marijuana debate. The federal government’s anti-pot hysteria has delayed research into the drug’s possible medical benefits by decades, and has led to the incredible sight of gun-toting federal SWAT teams pointing guns at AIDS and cancer patients during raids on medical marijuana clinics in states where the therapeutic use of the drug has been legalized.
But less known is the way the drug war has also hampered the treatment of chronic pain. By some estimates, as many as 30 million Americans suffer from untreated chronic pain. That number is likely only to rise as the country continues to age. A promising new treatment called high-dose opiate therapy has proven successful at keeping chronic pain at bay in many patients. As patients build up resistance to drugs such as OxyContin, doctors titrate up their dosages. The resistance eventually plateaus, but when it does, some patients may be taking 40 or more pills per day. Those patients don’t get high, and they don’t suffer any ill effects from the medication. They aren’t addicted; they’re merely dependent. Take the medication away, and the pain comes back.
Unfortunately, because some addicts also use opioid painkillers to get high, the Drug Enforcement Administration has decided to play doctor, determining that no patient should ever need more than some arbitrary dose (usually determined by drug cops with no medical training), and that any doctor prescribing drugs above those dosages should be assumed to be dealing. This aggressive, unnuanced pursuit of pain doctors has put the fear of prosecution into physicians who specialize in pain treatment. (It’s also scaring young doctors from even entering the field.) Driven by politicians spooked by a spate of irresponsible press reports warning that an OxyContin fad is sweeping the country, the DEA’s high-profile pursuit of pain specialists has created a poisonous relationship of suspicion between pain doctors and their patients and has left the country with a dire shortage of physicians willing to prescribe pain medication to people who are suffering.
Siobhan Reynolds, who started an advocacy group for pain patients after her now-late husband’s physician was arrested by the DEA, recently learned that one doesn’t even need to be a doctor to feel the blunt end of federal drug policy. Reynolds used her public-relations savvy to launch countercampaigns against federal law-enforcement authorities when she thought they were targeting a physician. She would encourage patients such a doctor had successfully treated to speak out. She deservedly takes credit for shifting the debate on the issue.
That didn’t sit well with federal authorities. When Reynolds recently launched one of her countercampaigns to defend an accused doctor in Kansas, Assistant U.S. Attorney Tanya Treadway launched a criminal investigation … of Reynolds. In a clear attempt at intimidation, Treadway issued her an extraordinarily broad subpoena that jeopardized Reynolds’s relationship with the doctors and patients for whom she advocated. Reynolds challenged the lawsuit on First Amendment grounds. She not only lost, but the subpoena, her challenge to it, and all briefs related to both cases were sealed by federal judges, a clear violation of her First Amendment rights that, unfortunately, was upheld in late 2010 by the U.S. Supreme Court.
The Verdun analogy
All just collateral damage. The DEA’s mission is to prevent people from getting high. If it takes an overbroad, overaggressive, speech-chilling campaign against doctors, patients, and advocates to do that, leaving millions of people in needless, sometimes debilitating pain, so be it. This is a war.
Even if the drug war were working — even if all the horrible things the federal government says are caused by illicit drugs were accurate (and some of them admittedly are), and even if the war on drugs were proving successful in eradicating or even significantly diminishing access to those drugs — it would be difficult to argue that the benefits would be worth the costs. (And even that, of course, leaves aside the critical question of whether preventing people from harming themselves is a legitimate function of government. It isn’t.)
But of course it isn’t working. Most of the federal government claims about the evils associated with illicit drugs are either exaggerated or misapplied effects not of the drugs, but of the government’s prohibition of them.
More to the point, none of it is working, even if one takes the positions of drug warriors at face value. It is as easy to achieve an illegal high today as it was in 1981, as it was in 1971, as it was in 1915, when the first federal anti-drug law was passed. Anyone reading this very likely knows where to get a bag of marijuana or knows someone who knows where to get one. Specific drugs come into and go out of vogue, but the desire to alter one’s consciousness, to escape life’s drab monotonies, or just to call in a different mindset, is as strong and pervasive as it’s ever been, going back to the Stone Age. And it’s easier than ever to fulfill.
In a 1986 speech designed to drum up public support for yet another round of drug-war legislation, Ronald Reagan officially designated illicit drugs a threat to America’s national security. After declaring, “We’re running up a battle flag,” he compared America’s determination in the war on drugs to that of the French troops at the World War I Battle of Verdun. As the journalist Dan Baum notes while explaining Reagan’s speech in his book Smoke and Mirrors, Verdun was a protracted, bloody, brutal battle of attrition. A quarter-million troops lost their lives and another 700,000 were wounded, all in a months-long battle for a small strip of land that offered little practical advantage to either army. In fact, in much of Europe Verdun has come to symbolize the futility of war and the way callous government leaders can write off a mass loss of blood and treasure as mere collateral damage in the pursuit of some supposedly noble but ultimately shallow and elusive aim. As it turns out, Reagan’s analogy was far more appropriate than he probably intended.
Part 1 | Part 2
This article originally appeared in the September 2011 edition of Freedom Daily.