THIS IS YOUR BILL OF RIGHTS, ON DRUGS

The "war on drugs" began as a rhetorical flourish used by Richard Nixon to
contrast his tough stand on crime with LBJ's "war on poverty." But as the
Reagan, Bush and Clinton administrations poured billions of dollars into
fighting drugs, the slogan slipped the reins of metaphor to become just a
plain old war - with an army (DEA), an enemy (profiled minorities, the
poor, the cities), a budget ($17.8 billion), and a shibboleth (the
children). As in any war, our political leaders have asked us citizens to
make some sacrifices for this higher cause. When George Bush entered
office, a Washington Post-ABC News poll found that 62 percent of Americans
"would be willing to give up a few of the freedoms we have" for the war
effort. The have gotten their wish. Initially applied only to the buyers
and sellers of drugs, exceptions to our fundamental rights have been
quickly enlarged to include every one of us. Bill Clinton's legacy is not
the drug-free zone he wanted but a moth-eaten Bill of Rights.

1. Most Americans consider the right to free speech, adopted as the First
Amendment to our Constitution, to he unassailable. But in less than thirty
years the tacticians of the drug war have found ways to erode this bedrock
liberty. In 1996 voters in California, by referendum, permitted doctors to
recommend marijuana as part of medical therapy. Alarmed that states were
breaking ranks, the federal drug czar, General Barry McCaffrey, threatened
to arrest any doctor who merely mentioned to a patient that marijuana might
alleviate the suffering caused by AIDS, cancer, or other serious illnesses.
Still, by last year, voters in seven states had approved the medical use of
marijuana. In November 1998 an initiative in the District of Columbia tried
to do the same. For almost a year no one knew whether the referendum had
passed, because Rep. Bob Barr (R., Ga.) impounded the $1.65 it would have
cost to tally the vote. Finally, last September, the courts overruled Barr.
Seven Out of ten D.C. voters had decided in favor of legalization. Refusing
defeat, Barr pushed a bill through Congress that blocked the spending
needed to enact the new law. As fallback, Barr has also proposed a joint
resolution of Congress to simply overturn by fiat the will of the people
expressed freely and fairly at the ballot box.

2. In 1954, the state of Oregon denied unemployment benefits to two Native
American workers fired for using an illegal hallucinogen - peyote - during
a religious ceremony that predates the Christian custom of drinking
sacramental wine by some 5,000 years. Once upon a time, the decision would
have been simple. Freedom of religion. Case closed. But Supreme Court
Justice Antonin Scalia, one of the drug war's unacknowledged generals,
decided that religious freedom would have to yield to the new drug-war
orthodoxy. He declared that any law aimed at the drug menace could restrict
religious liberty as long as it wasn't directly couched in bigoted
language. But, in short order, the state began plowing directly into the
affairs of more traditional religions. In 1993 the bitterest enemies, left
and right, banded together to pass the Religious Freedom Restoration Act.
Only seven months after the act was passed - by a rare unanimous vote in
the House and a nearly unanimous vote in the Senate - a Texas church
challenged local zoning laws on religious grounds. The suit eventually
appealed its way to the Supreme Court, which, citing the peyote case,
declared RFRA unconstitutional. Enraged, Congress has pledged to continue
its dangerous constitutional pissing match with the judiciary. All this to
prevent two citizens from practicing an ancient rite involving a scarce and
rarely abused drug.

3. Assembling peaceably at the voting booth is a waning American tradition
these days - in part because the drug war is creating a growing and
dangerous population of constitutional outcasts. As more people pass
through our prisons, more emerge permanently forbidden from voting.
Although most states merely disenfranchise felons in prison or on parole
ten vindictive states - Alabama, Delaware, Florida, Iowa, Kentucky,
Mississippi, Nevada, New Mexico, Virginia, and Wyoming - have banished more
than one million rehabilitated felons from the voting booth forever. Just
who these pariahs are is telling: possession of several grams of crack (a
crime for which urban blacks are disproportionately prosecuted) makes you
an instant felon, while possession of the same substance as powdered
cocaine (a drug predominantly used by whites) results in misdemeanors.
According to government statistics, blacks constitute only 14 percent of
our drug-using population, but 58 percent of those finally convicted. What
literacy tests and poll taxes once did in containing black suffrage has
found a contemporary replacement. (This is nothing new: in South Carolina
at the turn of this century, adultery, arson, and house-breaking were
crimes deemed necessary for disenfranchisement; murder - then thought to be
largely a white crime - was not.) In Mississippi there are 145,600
disenfranchised voters of which 129,000 are ex-felons and 51,700 are black
men. Today, one in three black men in both Alabama and Florida is
permanently barred from voting.

4. In 1762 the Crown of England sanctioned the use of "writs of assistance"
- - general warrants that permitted the king's deputies to enter any place at
any time in search of contraband, then mainly molasses, tea, and rum.
Colonial fury with the writs fueled America's rebellion and, later,
inspired the prohibition of "unreasonable searches and seizures." Since the
early 1950s, the Supreme Court has authorized cascading exceptions to this
rule, allowing police helicopters to peer into windows, highway troopers to
search the passengers of cars whose drivers seem suspicious, and most
notoriously, state agents to smash down doors without warning and without
evidence of a crime. Last August, El Monte California, police raided the
home of sixty-three-year-old grandfather Mario Paz. At least twenty armed
officers shot the locks off the back and front doors. They ordered Paz to
put his hands on the bed. Although he did, one of the officers believed
that Paz was "reaching for something." So the officer shot Paz, who was
unarmed, in the back two times, killing him. No drugs or any evidence of
dealing were found. The man the police had been looking for had lived next
door more than fifteen years earlier. These "dynamic entries," as they are
called, are on the rise. New York City has had to develop a policy for
replacing the doors of homes mistakenly entered. Last year, New York police
broke into the home of retired baker Basil Shorter, dragged his retarded,
menstruating daughter from the shower, and handcuffed her while she bled
down her legs. Although no drugs were ever found, investigators insisted
that their informant's "information was good." Drug dealers, they
explained, can operate out of the homes of innocent people without their
knowledge.

5. The once sacred protection of property rights is now regularly violated
by drug police. Beginning in 1974 the Supreme Court blessed the unholy idea
that property could be seized and sold by the government without any
arrest, conviction, or due process. Under the strange fiction that property
itself can be guilty (e.g., United States v. One 1974 Cadillac Eldorado
Sedan), the cops take your property, leaving you to prove that it has no
connection to a crime. If you miss the ten-day deadline for challenging the
seizure, or can't post bond, you lose. The rule has been a boon for miserly
town councils. In California, when San Jose's police chief asked why he'd
been allocated no money for equipment, he was told "just seize it." For
years state and local police had little incentive to divert their cruisers
from local law enforcement to nabbing drug couriers passing through their
jurisdictions. Then the feds pointed out that relaxed search and seizure
laws plus easy forfeiture rules equaled windfall profits. Troopers began
aggressively trawling their highways, using the new pseudo science of
profiling to determine likely suspects. (Profiling quickly declined into a
simple racial litmus test. In 1999 the New Jersey highway patrol admitted
that they'd falsified reports to hide their practice of routinely stopping
black drivers but finally defended racial profiling because, well, it's
just easier.) Law-enforcement agencies became so greedy that some states
passed laws diverting the forfeiture treasure to the schools. But the
Missouri Highway Patrol has devised a counter scheme tantamount to money
laundering. When the locals make a big bust, they call the DEA and let the
feds carry out the seizure. On average, the DEA keeps 20 percent of the
forfeited property for "processing" costs and kicks hack 50 percent to the
local police. Since 1993, Missouri law enforcement has earned $41 million
in seized assets and handed over less than $12 million to schools.

6. Any grade-school child knows that when you have been accused of a crime,
you have a right to confront your accusers. But with drugs it's different.
Unlike most felonies that involve a criminal and a victim, drug sales
involve two willing participants. So to find out about such transactions,
the police rely on inside information, effectively deputizing a posse of
faceless informants. Because many snitches are employed more than once, the
Supreme Court eliminated the right to face your accuser in a notorious 1983
ruling, Illinois v. Gates, which sanctioned the use of anonymous
informants. Moreover, any defendant choosing to go to trial risks
infuriating the judge by clogging his schedule. Most suspects, innocent or
not, plead guilty and then cop a lesser sentence by becoming snitches
themselves. Faceless informants are often paid by the police, and many of
them continue their drug habits, now subsidized by taxpayers. In effect,
the drug war has reduced our justice system to a tournament of snitches.

7. In service to the war on drugs, we have abandoned the traditional
requirement that punishment maintain some proportion to the crime
committed. Judges no longer have the discretion to tailor prison sentences
to fit individual circumstances. Instead, Congress has dictated "mandatory
minimums," reflexively tied to the amount and kind of drug possessed or
sold. Sentencing guidelines were born out of the noble intention to reduce
inequality in our justice system. Too often judicial discretion meant that
blacker, poorer defendants got stiffer sentences than whiter, richer
convicts. But the plan has backfired. Poor minorities remain the
overwhelming target for harsh sentences, but now the drug war's ever more
voracious appetite finds victims within every class and race. Take, for
instance, the case of sixty-one-year-old Marvin Harris, the devout Mormon
engineer who invented the transistor radio. In 1991, Harris and his wife
drove a friend's motor home back from Mexico. When they stopped at the
border, a customs agent found 1,900 pounds of cocaine hidden in the
vehicle's walls. (The friend has disappeared.) Stunned by the amount of
contraband involved, a jury convicted the couple of conspiring to import
and distribute cocaine. The judge, tormented that a great injustice was
occurring, but now powerless to apply his "judgment," instead wailed from
the bench at being forced to sentence them to a mandatory minimum of ten
years. Even the prosecutor expressed regret at the outcome. Now in their
seventh year of federal incarceration, the Harrises, model inmates, lead
fellow prisoners in Bible study. Meanwhile, the machine grinds on.

8. America launched a "war on alcohol" in 1920 and endured many familiar
unintended consequences: Rights were eroded. Decent people were redefined
as "criminals." And the cops, overwhelmed by an impossible duty, simply
collapsed into corruption. When America ended the war in 1933, the public
didn't legalize alcohol in every instance. The law forbids minors from
drinking, sales are controlled and heavily taxed, and drunkenness does not
legally excuse a crime. Alcoholism is now treated in clinics, not in
Courts. The current drug war could end just as reasonably, except it won't.
In September, General McCaffrey announced that the ranks of the enemy had
swelled. "The typical drug user is not poor and unemployed," he said,
citing a study revealing that seven in ten admitted drug users had
full-time jobs. "He or she can be a co-worker, a husband or wife, a
parent." Now the enemy is us, creating an eerie sense of historical deja
vu. The necessary "policies" - no-knock entry, property forfeiture,
anonymous snitch indictments, frozen elections - would sound quite familiar
to Thomas Jefferson, who cited as reasons for rebellion, "swarms of
Officers to harass our People," who "eat Out [our] substance" while
"depriving us, in many cases, the benefits of Trial by Jury" and "taking
away our Charters." Not long after the war those words provoked, James
Madison warned his young country: "I believe there are more instances of
the abridgment of the freedom of the people by gradual and silent
encroachments of those in power than by violent and sudden usurpations."