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The War on Drugs and the Bill of Rights

[ 38 ] May 20, 2011 |

I have an article up at the Prospect putting this week’s diminution of Fourth Amendment rights in context:

That the other eight justices signed on to the majority opinion shows how bipartisan a cause the war on drugs has become. It is especially disappointing that President Barack Obama’s two appointees — Justices Elena Kagan and Sonia Sotomayor — joined the majority to dilute Fourth Amendment protections. It is too early to fully evaluate either justice, but their decision in King vindicates progressives who felt that Obama squandered an opportunity to install committed civil libertarians on the Court. Ginsburg, 78 and in poor health, is the only justice on the Court with a strong commitment to civil liberties, and given the likely configuration of the Senate even if Obama wins re-election, it will be difficult to replace her.

[...]

As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.

All of these civil-liberties violations might be more tolerable if they were part of a valuable and effective policy. But while the drug war has been successful at locking up huge numbers of people (especially young African American men), it’s done little to reduce drug use. Alas, the drug war has been far more effective in curbing our civil liberties.

Comments (38)

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  1. Brad P. says:

    I’ve never had much faith in Kagan on civil liberties, but I am very disappointed in Sotomayor.

    Did her record suggest she would fall on the wrong side of this issue?

    • richard says:

      I think your dissapointment in Kagan is misplaced. Although I don’t have time to elaborate now, I think Scott’s take of Kentucky v. King is overdone and that the decision, which actually made no determination on the legality of the search but remanded to the trial court for findings is very limited. Since I think the case is very limited, I don’t think that Sotomayor’s joining in the majority decision says anything about how she would rule on other Fourth Amendment questions

      • David M. Nieporent says:

        This.

        As is typical of Scott’s legal analysis, he makes sweeping claims (“courts have long held that exigent circumstances cannot be created by the police themselves”) without any supporting citations, and fails to analyze whether such a position has any basis in the fourth amendment in the first place, plus he rests his position on a mistaken notion (that the Supreme Court ruled the search constitutional).

        The Kentucky Supreme Court’s decision (and that of other courts that have held similarly) doesn’t make any sense, constitutionally. If police are surveilling an apartment and happen to overhear someone inside saying, “Quick! Flush the cocaine!” then they can go in without a warrant, but if police knock on an apartment door and say, “Police,” and then overhear the same statement, it violates the fourth amendment because the perfectly legal, constitutional knock led to the statement?

        The better argument here is simply that the search was illegal because no exigent circumstances existed [and the lower courts will have an opportunity to address that issue] because merely hearing movement in an apartment cannot be sufficient to give them cause to believe that evidence was being destroyed.

        Also, Scott misstates the facts, both in ways favorable and unfavorable to his argument. He says, “Without possessing a warrant, they broke down the door and arrested the man in the apartment, who, it turns out, was trying to flush his pot stash down the toilet. He was later convicted.” Scott minimizes the facts when he says that there was just a “pot stash”; actually, the police found cocaine as well, and evidence of drug dealing. But he overstates the case when he says that they caught someone flushing pot; in fact the police did not find anybody flushing anything down anything. They found three people sitting on sofas, one of them smoking pot. They arrested all three.

        And that last point illustrates the real problem with the courts and the WOD — not that the fourth amendment is being doctrinally narrowed (it isn’t, at least here), but that courts will buy any factual claim by police who are fighting said WOD. Police claimed they heard evidence of the evidence being destroyed, and the courts accepted both (a) the claim by police of hearing something, and (b) the claim by police that this was evidence being destroyed. Both claims were false. They didn’t hear anything at all, and it certainly wasn’t sufficient to give them cause to think evidence was being destroyed. But police recited the boilerplate “exigent circumstances” language about evidence being destroyed, and courts agreed to pretend to believe it.

  2. c u n d gulag says:

    Our ‘civil liberties’ ship sailed when we started the stupid and useless “War on Drugs.’

    Yet it continues, and it can be said to be only successful at two things:
    1. Incarcerating large groups of minorities.
    2. Eliminating large numbers of potential Democrat’s from the pool of voters.

    I’m not sure what other sense there was to it unless as jobs were being shipped overseas it was to provide them in rural areas to build jails, and then staff them with local morons as CO’s (Corrections Officers) and support staff – all while shipping the minorities out of the cities to aid in gentrification,

    BTW – prisons have been one of the only growth industries in Upstate NY in decades.

    • Michael H Schneider says:

      Our ‘civil liberties’ ship sailed when we started the stupid and useless “War on Drugs.’

      Uhm, I think it sailed a whole lot longer ago than that.

      I really don’t know as much history as I should, but aren’t the war on Communism and the war onorganized labor part of the same trend? I’m thinking about Joseph McCarthy and the John Birch Society, and (long) before them the UMW and the Pullman strtike, etc. I hate to go all Marxist, but there’s a real strain of class based struggle here.

      • c u n d gulag says:

        Yeah, you’re absolutely right, but to me, it seems that the real death knell finally began during Reagan, and it’s largely due to the other most expensive “war” in our history – the one supposedly on drugs.

        All of a sudden, without prior cause, police could search you at train and bus stations, and stop your car, among other things.
        That’s when “Prior Cause” became, “Just ‘Cause!”

        And since people were terrified of the violence that goes along with ILLEGAL drug use and trafficing, they willingly caved and traded civil rights for safety and security – a lesson Little Boots Bush and his cabal took full advantage of in the last 10 years.

        From what I’ve seen, civil rights are like roaches going into a “Roach Motel” – once the government checks them in, they don’t check back out.

        • Michael H Schneider says:

          Without wanting to totally disagree, I’d like to point to an earlier time as the start of the war on drugs.

          The Jazz Age (or therabouts). Remember Hammett’s “Thin Man”? We’ve got a female main character who has just turned 18 going to Harlem and its Jazz clubs. Smoking. Drinking (a lot). That was the Depression, so we’ve got the usual mix of poor white folks, a few very rich white folks, Black folks doing something ‘primitive’ (jazz) and then we’ve got the drugs.

          That was the time of “Reefer Madness” (1936) and the beginning of the war on drugs (if I understand correctly) being a war on marijuana, which was tied to Blacks, to Jazz, to licentiousness and was A Threat To Civilization As We Know It.

          That was also the time of labor unrest (when wasn’t?) and Socialists and actual Communists (only 10 or 15 years after Debs’ last run for president) – so the crackdown on the anarchists somehow was consonant with the crackdown on drugs, and the same lack of civil rights for both.

          • DocAmazing says:

            Heck, the Reefer Madness era followed on the heels of the Volstead Act, the 19th Amendment and Prohibition, which was backed enthusiastically by the Klan and aimed at working-class drinking (the Anti-Saloon League’s writings are pretty clear in their class focus). “Drink is the curse of the working class”, remember?

            Drug wars are an established tradition.

            • Snarki, child of Loki says:

              Not to neglect the earlier anti-chinese racism linked to opium laws.

              But I do have to defend that old quote “Drink is the curse…” because without it we wouldn’t have:

              “Work is the curse of the drinking class”

          • Erik Loomis says:

            If we are going to look for a start on drug wars, you have to go earlier than marijuana to the move to ban cocaine and heroin in the 1910s.

  3. Glenn says:

    Sweet Jesus, one opinion you disagree with, and suddenly Sotomayor’s and Kagan’s critics are “vindicated”?

  4. superking says:

    I know! Let’s all see who can hold the most extreme position on the demise of civil liberties in the U.S.?

    Not that there aren’t serious problems, but the first six comments here read like a teenager’s diary. Sheesh.

    • c u n d gulag says:

      So, what’s stopping you from writing something, instead of criticizing others?

      I’d like to see what a real ‘adult’ has to say.

    • richard says:

      I agree. And the narrative about the demise of civil liberties is historically inaccurate. The plain fact is that we didn’t have a golden era of civil liberties before the drug war. What we had were very few Supreme Court decisions on search and seizure and related issues and police departments in most parts of the country that just did what they wanted without any fear of judicial rebuke or lawsuits or any supervision at all. We then, under the Warren Court, had a series of decisions that drastically (and admirably) curtailed police procedures (at least in theory) and gave potential redress to people whose rights (as expanded by the Warren Court) had been violated.

      Those expansions of rights were later curtailed for a variety of reasons. One was the war against drugs but that certainly wasn’t the only reason. Which leads us to the current situation which, in my view, is not ideal but is nowhere near the situation that existed prior to 1950.

      • wengler says:

        This is both true and untrue. There may have been less deference given to Constitutional law in force, but the police powers of the state have grown exponentially in the meantime.

        For years the only federal force were a small group of US Marshals. These days there are multiple entities with multi-billion dollar annual budgets and the power to surveil, raid, and arrest and then pass the convicted into the prison-industrial complex. Whole communities have been scoured and destroyed.

        Name a parallel pre-1950s that involves the police force specifically, rather than one being used in conjunction with a civilian terror organization.

        • Brad P. says:

          This is both true and untrue. There may have been less deference given to Constitutional law in force, but the police powers of the state have grown exponentially in the meantime.

          Precisely, it is the squeeze that exacerbates the civil rights problem.

          Even if the victims of the drug war had comparable protections to the 1950s, you still have to consider that federal and state governments are spending tens of billions of dollars on the arrests, prosecutions, and inprisonment of those individuals.

          Whenever there is a dramatic increase in the use of policing power, there must also be a nominal gain in the public’s protections and avenues for recourse, or it will be a very real loss of civil rights.

        • richard says:

          The police pre-1950 had less technological abilities, of course, than police today. And there was a smaller federal police apparaturs (but its not the case that the “only” federal force was a small group of US Marshalls – the FBI was founded in 1908). But I don’t believe it is in the least bit true that modern law enforcement has wreaked more havoc than law enforcement in the past.

          Let me give you an example of pre-1950 police power I’m familiar with – the Los Angeles Police Department. Prior to 1950, hell even until 1970 or so, there was no restraint, political or judicial, on the LAPD. It could arrest, beat, kill anyone it wanted to and it did so regularly, especially in the Hispanica and black communities. It scoured and destroyed a lot more communities, to use your terminology, than current law enforcement. I dont buy the argument that modern law enforcement has enslaved the population (the argument both of the extreme left and the Tea Party) while America of the past was a golden age of civil liberties.

          • MPAVictoria says:

            Interesting point Richard. Though I believe you need to have a close look at current incarceration rates among young African-American males. It may cause you to rethink your position.

            • richard says:

              I’m sure that incarceration rates are higher now than before. But restraints on police conduct are greater than before 1950 as well. The fact that more people are incarcerated does not necessarily mean that more civil liberties are trampled upon.

              Im not trying to make the point that this is a golden age of civil liberties, that the current drug laws are good or that the current rate of incarceration is good. I am making the point that the claim made by many of the posts that the war on drugs caused the death of civil liberties and that before the war on drugs, or at any earlier period of American history, there was a golden era when civil liberties were preserved and people were free is grossly inaccurate.

              • MPAVictoria says:

                I think the fact that Black Americans are much more likely to be incarcerated is a civil liberties issue.

        • Anonymous says:

          And who was the President who gave us ONE HUNDRED THOUSAND more police officers? Was that a good Democrat named Clinton. Yes I believe it was. What do we do with one hundred thousand more police officers? Do you suppose that arrest more people? Na they are all eating donuts and drinking coffee at Dun-kin Nuts. Neither party is interested in ending the failed policy.
          The Libertarian Party is the ONLY party on the correct side of this issue and we are working on it hard. End Prohibition NOW!

  5. It is too early to fully evaluate either justice, but their decision in King vindicates progressives who felt that Obama squandered an opportunity to install committed civil libertarians on the Court.

    I’ve had enough vindication already to almost kill me, thank you.

    Perhaps civil libertarians should now define their task in terms of preserving the historical memory, so that future generations will have a concept of what civil liberties were. And they could use this memory to build quaint civil liberties villages, sort of like Colonial Williamsburg, where tourists will stroll through eating snacks and watching staged civil-liberties-type events.

  6. I wonder when the courts are going to get around to noticing that the use of drugs destroys them, and that drugs are evidence of a drug crime, and conclude then that the reasonable suspicion of the use of drugs counts as an exigent circumstance that the police didn’t create?

  7. There’s one thing holding me back from buying Scott’s analysis wholesale: the police-created exigent circumstance (the destroying of evidence). Scott’s argument is that the police produced that circumstance by pounding on the door – that is, without that pounding, there would have been no reason to think that the occupants were going to destroy evidence – but remember the facts of the case: the police had just chased a crack dealer into the building and thought he was in that apartment.

    So, it wasn’t the pounding on the door that created the exigent circumstances, but chasing the crack dealer inside. If I’m a crack dealer and the police chase me into my apartment, I don’t wait for the pounding to start flushing things down the toilet.

    It gets tricky, though, in that the police didn’t know which door the crack dealer was behind. If they’d seen him run into an apartment while they were chasing him, they could have gone right in after him. Exigent circumstances already would have existed to enter his apartment. So, not knowing which door to knock on, they picked the one on the left, because it smelled like pot, and took the noises behind the door as confirmation that this was their guy. Couldn’t they have argued that the smell and the sounds behind the door served to confirm that this was the apartment they already had exigent circumstances to enter, owing to the chase, rather than arguing that the smell and noises created a new set of exigent circumstances?

    • dave says:

      I thought that they were doing covert surveillance of the crack dealer without his knowledge. I don’t believe they chased anybody.

      • Hmmm…They were definitely doing covert surveillance before and during the drug buy, but after that, the language of the decision makes it sound as if they were chasing him.

        Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment. App. 20.

        In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles.

        When I first read this, I interpreted it as the suspect running away from the officers called in after the staged buy. Looking again, it can be read otherwise.

    • Joe says:

      Scott’s analysis of the war on some drugs as a whole is on point, but use of this case is less so. I think Richard is right on that front.

      The ruling didn’t lie on the factors raised. The “exigent circumstances” was granted. The only issue is if the police themselves illicitly created it (the feared destruction of evidence) by doing something legal (knocking on the door).

      Since the police was in their rights to simply knock on the door, this in itself would not make the entry illegal. In this given case, as you suggest, how one would prove they didn’t have a legal reason to knock (since they were in pursuit / smelled marijuana), if only to ask questions or warn the persons inside about the person in flight, is unclear.

    • DocAmazing says:

      Pot does not smell like crack. Claiming that you are justified in entering a pot-reeking home to chase someone with crack makes as much sense as demanding Brussels sprouts from a dairy farmer.

      Not that logic ever slowed cops down.

      • astonishingly dumb hv says:

        I think the theory was that the crack dealer was stopping to smoke a joint to calm his nerves after the chase and help him feel mellow enough to destroy his crack stash.

      • Joe says:

        That would be silly if that is what they did.

        They viewed a buy and chased the suspect. Suspect runs into apartment complex and a door closes. There are two apartments. One turns out to be where the suspect is. They smell marijuana coming from the other.

        They knock on this door first and announce they are the police. Marijuana being illegal, that alone would be grounds for them to knock. They also could reasonably knock to investigate in general. Anyway, they claim to hear noises that suggest evidence is being destroyed.

        This is assumed to be true as is their right to enter if they themselves didn’t cause the feared upon destruction of evidence. The only question being if them causing it (by knocking etc. not only in the middle of a chase, but after smelling an illegal substance) disqualified them from entering. Knocking being a legitimate part of a police investigation, the SC said no. The matter was sent back to deal with other issues.

      • Good point. This, then, is a question of reasonableness: did the police have a reasonable belief that the door on the left was the correct door, because of the smell of pot?

  8. MAJeff says:

    So, what’s the answer?

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