Undermining Civil Liberties For A Futile Policy

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“The Fourth Amendment has been virtually repealed by court decisions,” Yale law professor Steven Duke told Wired magazine in 2000, “most of which involve drug searches.”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.