The War On (Some Classes of People Who Use Some) Drugs could almost be funny if it didn’t ruin so many people’s lives at great expense.
Tag: "The War On (Some Classes of People Who Use Some) Drugs"
The only thing I can say about the Manny story is that at least it’s better than the ever-so-fascinating speculation about whether the 26th-best QB in the league will one again unretire and make a team mediocre by his very presence. And there is at least the comedy of sportswriters climbing over themselves to be more moralistic. There are the inevitable explanations about how taking steroids is OK if a player you like did it. Claims that a first offense should mean a lifetieme suspension and players who used PEDs should be treated like scabs, even those who (unlike Ramirez) didn’t even “cheat” in any meaningful sense (i.e. by breaking an actual rule that is actually being enforced.) The Dodgers should release him. (Could you trade him to the Mets instead? We have a recent 15-game winner to give up!) Manny should not be voted to the HOF even though excluding steroid users would be completely incoherent. Etc. Etc. Etc. Gawd.
…as part of his comprehensive link roundup, Keri notes this from Bill James: “You give me the opportunity to earn $22 million a year by taking steroids, I’ll shoot the pharmacist if I have to. I’m not saying it’s right. I’m not saying I shouldn’t be punished for shooting the pharmacist. I am saying it is self-righteous to pretend that I don’t have the same human failings that these guys do, and further, if you are insisting that you don’t have them, I don’t believe you.” And, more to the point, leaving aside the fact that the sainted players of the Greatest Generation who are the only legitimate HOFers ever did use PEDs (except that for some reason it was kinda charming when they did it) anyone who thinks that many players from the Era of Integritude wouldn’t have used them if they weren’t available is dreaming in technicolor.
Lithwick and Savage bring the depressing news about yesterday’s oral argument in the case in which a 13-year-old young woman was strip-searched by school officials because of an entirely uncorroborated and self-interested (and ultimately inaccurate) accusation that she possessed ibuprofen, without even contacting her parents first. Alas, in the former’s words “it’s plain the court will overturn” 9 CA’s persuasive holding that the search violated Redding’s constitutional rights.
Judging by the reports, the lineup seems to be going according to the worst-case scenario I feared. Ginsburg seems a sure vote to uphold 9CA, with Stevens and Scalia at least reasonably likely. Souter is dubious, and seemed suckered by the state’s irrelevant hypothetical scare scenarios. Alito and Roberts (of course) seem certain votes to overturn and Thomas doesn’t give clues in oral argument but might be the least likely of all given his position on the constitution’s application in schools. I will admit that I held out some hope that this case would awaken Kennedy’s Rip Wan Winkle conscience — my bad. The weaselly “minimalist” opinion likely to emerge in this case is going to be especially infuriating. Frankly, I would have more respect for the Court if they just explicitly adopted Thomas’s position that as long as school officials don’t go so far as to violate a criminal statute they’re not required to put any weight on their students’ privacy and dignity at all. Because given this set of facts, it’s pretty much what they’ll be holding anyway.
And Breyer. Breyer, Breyer, Breyer. A very intelligent and charming man, but between his deference to business interests and deference to petty-dictator state officials also a Clinton-era liberal in the worst sense (and indeed, in Clinton’s defense there is substantial evidence that even he was very reluctant to appoint him.) Lithwick:
This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
But Breyer just isn’t letting go. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.” [Unaltered quote--ed.]
I don’t even know what to say to someone who doesn’t see a significant distinction between being strip-searched and wearing gym clothes. To state the obvious, this is the kind of argument that belongs on a third-rate wingnut talk radio show, not in the mouth of a Democratic-appointed Supreme Court justice.
As a coda, djw noted in comments to my first post that conservative bloggers like Tom Maguire and Ed Morrissey to their credit agreed with 9CA that the search was unconstitutional but to their discredit bizarrely seemed to attribute their positions to their heroes Alito and Roberts. (Morrissey: “The question won’t be whether Redding will win. It will be whether it goes 9-0 in her favor. I’d put that at even money.” Uh, care to make it interesting?) Maguire seems to have read the tea leaves, and yet can’t resist a little delusion:
Maybe the court is positioning itself for a switcheroo – my recollection is that sometimes the questoiners are tougher on the side they favor. We should find out in late June.
Yes, that must be it. And when Alito and Roberts compiled extensive records as statist reactionaries, they were just throwing people off the scent. That case where Alito argued that a strip search of a 10-year-old girl based on a deficient warrant should be upheld (dissenting from a holding by well-known civil libertarian radical Michael Chertoff) — it’s a decoy! I sure hope I get into a poker game with Maguire some day….
Apparently, the ability of the War On (some classes of people who use some) Drugs to act as a solvent in which the Fourth Amendment vanishes has some limits. Today, the Supreme Court ruled that a search of an automobile after the defendant was secured (in this case, for his arrest for driving with a suspended license) for evidence of an unrelated crime (in this case, the police found cocaine, but obviously didn’t need to search his car for evidence that he had been driving without a valid license) was unjustified. The Court did not overrule New York v. Belton — the case which has generally been read to permit the police very wide discretion to conduct searches of automobiles without probable cause — but did argue that it should be read much more narrowly than it has been. Since in Belton the suspects were actually arrested on a drug charge, the case is quite easily distinguished. Today’s case will at least prevent the police from using unrelated minor offenses to justify drug searches without probable cause. Under today’s ruling, car searches without probable cause are valid only “if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle” or if the suspect might be able to access the car for weapons.
The other interesting thing about the case is the lineup of the Court’s 5-4 decision. This won’t come as a surprise to you if you have a better grasp of the issues than Ann Althouse or Stuart Taylor, but this case presents yet another example of the fact that Alito and Roberts aren’t as bad as Scalia and Thomas — they’re worse. Both Scalia and Thomas showed their sporadic libertarian streak today, joining Stevens’s opinion (with Scalia even writing a concurrence suggesting that, if anything, the Court’s opinion didn’t go far enough.) Alito, on the other hand, wrote a dissent arguing for a bright-line rule that would permit any search of an automobile incident to arrest (irrespective of whether or not there is any threat to an arresting officer’s safety or of whether the search was relevant to the arresting offense.) He was joined by Roberts and (a little more surprisingly, although he’s pretty conservative on most civil liberties issues) Kennedy. Breyer, always a wet on civil liberties issues, also argued that the search should be justified on stare decisis grounds.
The only thing I can say for Alito’s dissent is that his claim that the majority’s analysis of Belton is artificially narrow has some merit; I wouldn’t have objected to overruling it explicitly. But given Alito’s history of, ah, “minimalist” treatment of precedents, he’s the last person in the world who can complain about it. And as Scalia says, even if one agrees that the Court’s holding “does not provide the degree of certainty I think desirable in this field,” Alito’s alternative “opens the field to what…are plainly unconstitutional searches—which is the greater evil.”
[X-Posted to TAPPED.]
Shorter Jonah Goldberg: Libertarians are actually obliged to ignore the systematic effects of state interventions I favor (like the War (On Some Classes of People Who Use Some) Drugs), as well as policies that the National Review has traditionally supported (like apartheid at home and abroad.)
“I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
The idea that the WO(SCOPWUS)D’s increasing obliteration of the Fourth Amendment would be tolerated if upper-middle-class families were frequently having their doors beaten in, property seized, daughters strip-searched with the approval of future Supreme Court justices, etc. etc. is absurd. Wilkinson is just pointing out the obvious, and libertarians can see the consequences as much as anyone.
Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.
An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.
The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”
Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.
Liptak quotes a professor asking if “we really want to encourage cases…where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?” Of course, there’s another way of asking the question: “should the courts provide at least some disincentives that compel public officials to place some weight on the privacy of their students when responding to anti-drug hysteria?” I’m going to answer “yes.” And, certainly, if this counts as “reasonable” I’m not sure what isn’t going to qualify.
I fear, though, that this apologism might convince some justices. In addition to the always bad-for-civil-liberties WO(SCOPWUS)D context, students have been particular subjects of collateral damage (cf. this case, upholding mandatory drug testing without individualized suspicion for students participating in any extracurricular activities.) Alito’s record on such issues is appalling, and Roberts seems similar if not quite as radical. Thomas has all but argued that schoolchildren abandon most of their constitutional rights. Breyer (who concurred with Thomas’s opinion in the drug testing case) is highly unreliable.
Still, I have some hope that the set of facts here is so appalling — a wholly arbitrary, extremely degrading search, for ibuprofen, of a good (and innocent) student — that the Supreme Court will vindicate Redding’s rights. The school’s action in this case is an example of what one justice called an “immolation of privacy and human dignity in symbolic opposition to drug use.” Perhaps this case will awaken Scalia’s sporadic libertarian conscience.
This kind of reform of draconian drug laws is, admittedly, a second best option. lower maximum sentences along with the treatment option would be preferable. Just increasing judicial discretion doesn’t always mean less draconian penalties and also makes the process more arbitrary (a particular danger where the War on (Some Classes of People Who Use Some) Drugs is concerned.) Still, if it passes it’s certainly better than the status quo.
While he’s wrong about the filibuster, I should note today that Brien Jackson (at 10:40 A.M.) is completely right about PEDs. As I’ve said before, I have no problem if a majority of players agree to have enforceable bans on substances because they believe the health risks are unacceptable and they don’t want a race to the bottom, or because they want other concessions in collective bargaining, or whatever. What I’m opposed to is 1)calling people who violated nominal but completely unenforced rules as “cheaters” and 2)engaging in empty moralism about how Athletic Purity has been violated because some particular chemical means of enhancing performance has been used.
To follow-up on Brien a bit, both variants of this moralism are plainly unserious arguments. If the argument is about health, well, if it was unacceptable to take any risks that might produce suboptimal health outcomes, you know what would be banned? Throwing baseballs overhand and hard a hundred times every five days. (We won’t even start on football.) Unless you support banning all professional sports altogether, to focus on the health risks of steroids in particular is ludicrously arbitrary. (And the fact that virtually nobody cares about steroid use in football — where the health effects are compounded — just underlies the point.)
But of course, this isn’t about health; this is about the Sanctity of the Record Book, and especially the records Back From When It Was A Game And the Players Proved Their Loyalty and Pride By Playing For A Fraction Of Their Market Value. But this also makes no sense. As Brien says, all records are contingent. If Hank Aaron had played for 15 years at Griffith Stadium, he wouldn’t have owned the home run record. If there hadn’t been two new bandboxes added to the league in 1961, Roger Maris probably wouldn’t have had a record to be broken by History’s Greatest Monster Except For Barry Bonds. If Greg Luzinksi had come up with the Rockies in 1994 who knows what records he would have set. Maybe Ty Cobb would have hit 900 homers if he had played in another era. And so on and so on. There’s no such thing as a statistic that purely reflects a player’s performance. In addition, people like to assert that steroids were the dominant factor in the increase in power numbers that started in the early 90s, but this is very, very questionable. There are a lot of other factors: smaller ballparks, much improved bats, aluminum bats in amateur ball teaching hitters to hit for power to the opposite field, Lasik surgery, improving training and nutrition, etc. etc. etc. My guess would be that steroids rank well down that list; certainly, it’s much easier to document the effect of ballparks on home run totals. But at any rate, all records are a product of their time, and Bonds’s records are no more and no less “legitimate” than Henry Aaron’s or Roger Maris’s (and Bonds, pre- or post- steroids, was a greater player than either.)
I am still uncomfortable with saying that steroids are no big deal and that the argument for banning them is silly. Allowing steroid use creates an institutional pressure to have players unnecessarily put their health at risk to stay competitive. In no other industry would we so cavalierly accept this state of affairs except in professional sports.
I’m in basic agreement with this. Even without certainty about just how harmful to your health or helpful to your performance steroids actually are (and my sense is that their harm, like most drugs on the wrong side of our culture’s good vs. bad drug dividing line, is probably overstated), a solid case can be made for a ban on a sort of collective action problem grounds Jay suggests. Ownership may have legitimate concerns about this as well, including PR concerns. On the other hand, I take privacy pretty seriously, so if they players union democratically concluded the privacy violations of drug testing were a bigger negative to them than solving the collective action problem of steroid use was a positive, I’d certainly respect that conclusion–I’m not the one who’ll be required to give blood samples, pee in a cup, etc. But it seems clear to me that this is a matter of the terms and rules of employment best hashed out between MLBPA and management, as it eventually was.
However, since it’s not my body, my privacy, or my financial interests, I’m not in a reasonable position to claim to be a stakeholder in whatever conclusion is reached. Until I see a compelling argument that “the public” or “the fans” have a legitimate, non-sentimental basis for claiming stakeholder status on this issue, I’m going to continue to be dismissive and contempuous of moralistic hand-wringing about steroids.
…also, what McKingford said about the football/baseball double standard. It strikes me as really, really weird.
Oh, God, coverage of the now nearly-at-hand beginning of the baseball season will once again be dominated by the thoroughly uninteresting news that completely unenforced nominal rules against drug use were systematically violated, as they have been throughout baseball history except that it was cute when
most of the players were white players like Mickey Mantle may have routinely taken performance-enhancing amphetamines cute pills but were upstanding citizens who payed for the love of the game. I just regret that it wasn’t Jeter who was caught, not because I would care but because it would cause sportswriters to claim that it doesn’t actually matter and spare us the empty moralizing.
And just since it’s been a few days since the last flame war on the topic, I thought I’d throw in this from Bill James at his subscription site, which gets at the issue nearly perfectly:
Who was it exactly that said that Jeter was overrated? I don’t think it’s an issue of his being overrated exactly; it is more an issue of his being fawned over. Maybe I’m missing something, but I think most people acknowledge that he’s a great player. Bobby Abreu is a great player, too, but nobody feels compelled to tell you once an hour or so that he is not only a great player but a great team leader, a clutch hitter, a role model for children, a hero to firemen, the greatest baserunner since DiMaggio, has the work ethic of Bear Bryant, the courage of a Braveheart, the modesty of Ghandi, the footwork of Nijinski, the charisma of a movie star and the baseball instincts of John McGraw. But no Yankee broadcast is complete without at least three or four paeans to Jeter’s virtues. It’s unnecessary, it’s childish, and it’s embarrassing.
The one caveat is that he has been overrated as a defensive player, although not necessarily as a player over all (or, if he has been, it’s only because Babe Ruth wasn’t as good as Michael Kay makes Jeter out to be.) But Jeter certainly is a great player, and the way he’s treated by the media and broadcasters (and not just local ones) is utterly embarrassing (and may well have cost him 2 MVP awards he arguably deserved.) And incidentally, it’s weird that Abreu — similar to but somewhat better than Jeter as an offensive player, somewhat less valuable as a defensive player (below-average corner OF vs. really bad SS — how many runs is that?) can’t get a contract.
As part of a comprehensive look at the costs of the War On (Some Classes of People Who Use Some) Drugs, Radley Balko notes that it’s where civil liberties go to die:
“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 the aforementioned no-knock raid is one example, as is the almost comically comprehensive list of reasons for which you can be legally detained and invasively searched for drugs at an airport. In many areas of the country, police are conducting “administrative searches” at bars and clubs, in which an obvious search for criminality is cloaked in the guise of a regulatory inspection, obviating the need for a search warrant.
But the drug war has undermined the rule of law in other ways than its evisceration of the Fourth Amendment. Take the bizarre concept of asset forfeiture, an attack on both due process and property rights. Under the asset forfeiture laws passed by Congress in the 1980s (then reformed in 2000), property can be found guilty of a drug crime. The mere presence of an illicit substance in your home or car can allow the government to seize your property, sell it, and keep the proceeds. The onus is then on you to prove you obtained your property legally. Even the presence of an illicit drug isn’t always necessary. The government has seized and kept cash from citizens under the absurd argument that merely carrying large amounts of cash is enough to trigger suspicion. If you can’t prove where you got the money, you lose it.
If Fourth Amendment protections were being narrowed in cases where the police were otherwise unable to solve violent crimes, this would at least poses difficult questions. But this hasn’t been the case; the professionalization of police forces required by the Warren Court hasn’t — despite many hysterical predictions — substantially undermined the ability of police forces to fight violent crime. Rather, the worst watering down of the Fourth Amendment has generally come in cases where the effect of violations of constitutional liberties have the effect of Person Y selling drugs rather than Person X selling drugs. This isn’t even remotely defensible.