The War on Drugs

is a War on Freedom

Prof. David R. Henderson

February 20, 2001

 

 

(This talk was given to the local chapter of the ACLU in Monterey, California in February 2001).

 

Those who advocate the U.S. drug war often talk as if they think the U.S. government is making a war on such psychoactive drugs as marijuana, cocaine, and heroin.  But you can’t make a war on drugs any more than you can make a war on tomatoes.  Both drugs and harvested tomatoes are inanimate objects.  In any war that government officials choose to fight, they are fighting other people.  The drug war certainly seems like a war: the U.S. government uses guns and other weapons in the fight.  So an immediate question to ask is: on whom is the drug war being waged?

 

The U.S. drug war is being waged on some people in the United States and on some outside the United States. Our local Monterey group, FED-UP, short for Foundation to End Drug Unfairness Policies, opposes the drug war.  We believe that the drug war is destroying our precious liberties, and not just the liberties of those who use or sell illegal drugs.  Let me give some examples.

 

1.      The right to be free from unreasonable search and seizure.

 

Here’s what legal scholar Steven Duke has written.

People may be stopped in their cars or in airports, trains or buses, and submitted to questioning and dog sniffs.  Police may search an open field without warrant or cause, even if it has “no trespassing” signs and the police trespass is a criminal offense.  They may also, as in Orwell’s 1984, conduct close helicopter surveillance of our homes and backyards.  They may also search our garbage cans without cause.  If they have “reasonable suspicion,” the police may even search our bodies.  Mobile homes, closed containers within cars, as well as cars themselves may be searched without a warrant.[1][1]

 

Moreover, notes Duke, the courts have cast the net wide in deciding what characteristics of a person and a person’s actions are grounds for reasonable suspicion in the drug war.  Duke writes:

 

Federal Circuit Judge Warren Ferguson observed that the DEA’s [Drug Enforcement Agency’s] profiles have a “chameleon-like way of adapting to any particular set of observations.”  In one case, a suspicious circumstance (profile characteristic) was deplaning first.  In another, it was deplaning last.  In a third, it was deplaning in the middle.  A one-way ticket was said to be a suspicious circumstance in one case; a round-trip ticket was suspicious in another.  Taking a non-stop flight was suspicious in one case, while changing planes was suspicious in another.  Traveling alone fit a profile in one case, having a companion did so in another.  Behaving nervously was a tip-off in one case, acting calmly was the tip-off in another.[2][2]

 

We heard a lot during the recent Presidential campaign and during the John Ashcroft nomination hearing about racial profiling.  One of the main uses of racial profiling has been to catch drug dealers.  Duke points out that in Memphis, about 75% of the travelers stopped by drug police were black and yet only 4% of the flying public is black.[3][3]  If the drug war ended, that use of racial profiling would also end.

 

2.      The right to private property.

 

Although the Fifth Amendment of the U.S. constitution guarantees that no person shall “be deprived of life, liberty, or property, without due process of law” and that private property shall not “be taken for public use without just compensation,” these guarantees are routinely ignored in the drug war.  Under the asset forfeiture rules, the government often seizes property that government officials simply suspect was used in a drug crime.  No one need be accused, let alone convicted, of a drug crime for the government to seize their property.  Duke points out that in 80% or more of drug forfeitures no one is ever charged with a crime.  In one case, notes Duke, the simple intent to use the proceeds of a home equity loan to buy drugs, even though the person who got the loan did not use the money to buy those drugs, was grounds enough for a court to rule that the person who owned the home should lose possession of the home.[4][4]  Duke also writes, “Entire hotels have been forfeited because one or more rooms of the hotel have been used by guests for drug transactions.”[5][5] 

 

3.      Financial privacy.

 

People who engage in cash transactions of amounts of in excess of $10,000 must file forms with the federal government.  This regulation was introduced by the Reagan administration as part of its attempt to fight the drug war.  The federal government also has wide powers to snoop in your bank account and part of the justification for these powers is that it they are needed to fight the drug war.  Although we in the United States are used to this loss of freedom, freedom from government surveillance of our financial affairs in the “land of the free” is far less than in Switzerland—no surprise—and even than in Canada.

 

4.       The right to a fair trial.

 

In most drug prosecutions, notes Duke, the trial judges do not write opinions explaining and justifying their rulings.  Therefore, the defendants in such cases rely on the appeals courts to assure that the trial was fair.  Yet, notes Duke, many appeals courts routinely uphold long criminal sentences for drug convictions.  Duke finds that there is little reason to believe that appellate judges even read the briefs brought by the defendants.  One Supreme Court justice once told Life magazine, “If it’s a dope case, I won’t even read the petition.  I ain’t giving no break to no dope dealer . . . .”[6][6]   The justice who said this was one who is generally thought of as being strong on civil liberties.  His name: Thurgood Marshall.[7][7]  

 

5.      The right not to be spied on by the government.

 

Not only does the government spy on us, but it pays people sometimes-large rewards for informing on those who commit drug crimes.  In 1987, notes Duke, the Fifth Circuit Court overruled a 1962 decision that invalidated convictions based on contingent-fee informers.  Now someone who tips off the police can make hundreds of thousands of dollars from a successful forfeiture.[8][8]  

 

6.      The right to be free from government propaganda.

 

 Take D.A.R.E. (Drug Abuse Resistance Education), funded partly by government and taught to young kids by policemen.  There’s mounting evidence that D.A.R.E. is ineffective or even perversely counterproductive.  But even if D.A.R.E. were effective, it is a form of government propaganda for children.  How does that fit in a free society?  It simply doesn’t.

 

In short, a serious war against drugs requires a serious war against freedom.

 

            There’s a reason that the government has intruded so much in our personal lives in order to fight the drug war.  The reason has to do with a simple but powerful principle in economics, the principle that both sides gain from exchange.  Remember that the drug war is fought against people who are producing, buying, and selling drugs.  All of these transactions are voluntary exchanges in which, however unwise some of us might think they are, both sides gain from exchange.  Therefore, both sides will want to conceal the typical exchange from the government.  This is very different from many of the other criminal laws that government enforces—laws against rape, murder, theft, etc.  In all those cases, someone loses and therefore has an incentive (or, in the case of murder, the person’s friends and relatives have an incentive) to give information to the police so that the criminal can be caught and prosecuted.  But because both sides want to conceal the drug exchange, the government, if it wants to crack down effectively, is driven inexorably to intruding into people’s private lives.

 

The bitter irony is that most problems that people attribute to drugs are actually not due to drugs but are due to the drug war.  I’ll mention four:

 

1.      The high price of drugs, which tempts many drug users to steal to support their habit.

 

The high price is due to the fact that the drugs are illegal and therefore suppliers, to be willing to supply, charge a risk premium.  In a book chapter I wrote a few years ago,[9][9] I compared two exports from Colombia, both of which are or contain drugs, and both of which begin with the letter “c”.  I refer to cocaine and coffee.  I estimated that if the same mark-ups applied to cocaine as to coffee, which would be roughly accurate with cocaine legalization, then cocaine’s price in the United States would fall by about 97%.  No one would feel the need to steal to support a cocaine habit.

 

2.      The innocent people killed in the drug war crossfire.

  

Because drugs are illegal and the penalties for being in the industry are very high, the illegal drug industry attracts criminals.  Competition between rival drug “firms” is often cutthroat, literally.  In the wars between these firms, many innocent people are killed.  If drugs were legal, competition would be on price, quality, and convenience, just as for any other good.  When Prohibition ended in 1933, organized crime left the liquor industry—and so did violence.

 

3.      People dying from overdoses or from foreign substances used to cut the drugs.

 

Because the drugs are illegal, no one in the business can use advertising to establish a reputation and brand name.  You can’t have a brand name for, say, cocaine, that is at all comparable to the brand name for Coca-Cola.  Therefore, there is much less incentive to provide a known quality product.

 

4.  Children being involved in the drug trade.

           

I believe that this first happened in a big way in New York state in the early 1970s, after Governor Rockefeller drastically increased the penalties for drug dealing.  Criminals then recruited teenagers because the penalties for under-age drug dealers were lighter.

 

A few other facts are relevant here.  Many people believe that the government turns a blind idea to marijuana, especially when it involves simple possession.  But in 1999, about 800,000 people in the United States were arrested for marijuana, 85% of them for possession, not sale, of the drug.[10][10]  Also, nearly one quarter of America’s prisoners—about 460,000 people—are behind bars for non-violent drug offenses.[11][11]  Finally, drug sellers now often go to prison for longer periods than convicted rapists and even sometimes longer than convicted murderers.

 

There are, fortunately, many hopeful signs.

 

Although the federal government is working hard to ignore voters, voters and legislators in many states are passing medical marijuana laws that would decriminalize marijuana use for those who have a medical use for it.

The Republican governor of New Mexico, Gary Johnson, has been forthright in his denunciation of the drug war and has recently introduced a bill to decriminalize possession of small amounts of marijuana. California Republican Tom Campbell made his opposition to the drug war a key part of his 2000 campaign for the U.S. Senate.

 

Republican governors John Engler of Michigan and Governor George Pataki of New York are talking about relaxing their harsh minimum sentencing laws.

 

There are now 8 states in which voters (Alaska, California, Colorado, Maine, Nevada, Oregon, and Washington) or the legislature (Hawaii) have made it legal for patients to use medical marijuana.

  

On November 28, 2000, the Supreme Court, in City of Indianapolis et al. v. Edmond et al, found by a voted of 6-3 that random roadblocks to search for illegal drugs are unconstitutional.[12][12]  Some of those who have followed Justice Clarence Thomas’s strong support of civil liberties were surprised that he dissented from the majority opinion.  There are hopeful signs in his separate dissent, however.  Justice Thomas wrote:

 

Taken together, our decisions in Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), and United States v. Martinez-Fuerte, 428 U. S. 543 (1976), stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. I am not convinced that Sitz and Martinez-Fuerte were correctly decided. Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered "reasonable" a program of indiscriminate stops of individuals not suspected of wrongdoing.

Respondents did not, however, advocate the overruling of Sitz and Martinez-Fuerte, and I am reluctant to consider such a step without the benefit of briefing and argument. For the reasons given by The Chief Justice, I believe that those cases compel upholding the program at issue here. I, therefore, join his opinion.

  

            In other words, Thomas believes that opponents of roadblocks do not go far enough in their opposition and gave future opponents a road map for a constitutional challenge.

 

            Noted economist Milton Friedman once pointed out that in the early 1930s, even though many Americans saw the problems created by Prohibition, few people expected it to end soon.  And yet, in 1933, Prohibition ended.  Similarly, although few people expect an end to the drug war, it could end as quickly as Prohibition did.  But we want to do our bit to end it.  It will never end if we passively sit back and accept government oppression.  On the other hand, if hundreds of thousands of us rise up around the country to take back our heritage of freedom from government intrusion, it just might end.  I take inspiration on this from Joell Palmer, a 21-year-old waiter at an Outback Steak House in Indianapolis and recently a Libertarian Party candidate for the Indiana House of Representatives.  Palmer, who was stopped at an Indiana roadblock because his 1979 black Pontiac Trans Am “fit the profile,” refused to let the police inspect his car.  They inspected it anyway.  After they failed to find drugs, Palmer didn’t just let it go.  He contacted an attorney from the Indiana Civil Liberties Union and filed a class action suit against the city of Indianapolis.  The suit made it all the way to the Supreme Court, where he won, on the 6-3 decision mentioned earlier.  His words can be inspiration for us all.  Said Palmer:

 

I am standing up to something that I know is wrong. I am fighting for everyone’s rights—showing there actually are people who don’t let big government bully the people around.[13][13]

 

[14][1] . Steven Duke, “The Drug War on the Constitution,” in  http://www.cato.org/realaudio/drugwar/papers/duke.html, p. 1.  Duke gives cites for all of these statements.

[15][2] . Duke, “Drug War on Constitution,” p. 2.

[16][3] . Duke, “Drug War on Constitution,” p. 2.

[17][4] . Duke, “Drug War on Constitution,” p. 5.

[18][5] . Duke, “Drug War on Constitution,” p. 6.

[19][6] . Donna Haupt and John Neary, “Justice Revealed,” Life, September 1987, p. 105.

[20][7] . Duke, “Drug War on Constitution,” p. 5.

[21][8] . Duke, “Drug War on Constitution,” pp. 7-8.

[22][9] . David R. Henderson, “The U.S. Drug War on Latin America,” in a not-yet-titled, forthcoming book from the Hoover Institution. 

[23][10] .  Adam J. Smith and Karynn M. Fish, “How the Drug War Harms, Not Helps, Kids,” AlterNet, October 9, 2000, http://www.alternet.org/story.html?StoryID=9910.

[24][11] .  See Kelly Virella, “460,000 Busted for Drugs—and Counting,” AlterNet, July 27, 2000, http://www.alternet.org/story.html?StoryID=9507.

[25][12] .  See http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=99-1030

[26][13] . Quoted in “Indiana LP members gets Supreme Court hearing,” Libertarian Party News, September 2000, http://www.lp.org/lpnews/0009/palmer.html.