Tag: drug war

There’s No Drug War Exception to the Constitution

Florida is so zealous in pursuing the war on drugs that its laws classify the possession, sale, and delivery of controlled substances as crimes not requiring the state to prove that the defendant knew he had possessed, sold, or delivered those substances.

In Florida Dept. of Corrections v. Shelton, state prosecutors convicted Mackie Shelton of transporting cocaine under one of these “strict liability” statutes, the trial judge having instructed the jury that the state only needed to prove that Shelton delivered a substance and that the substance was cocaine. Shelton successfully challenged the constitutionality of that state law in federal court, where the district judge overturned the conviction and noted that “Florida stands alone in its express elimination of mens rea as an element of a drug offense.”

Florida appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit. Cato has joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, and 38 law professors on an amicus brief supporting Shelton’s position.

The Supreme Court has recognized only limited exceptions to the general rule that criminal culpability requires mens rea (a guilty mind). These “strict liability” crimes fall under the rubric of “public welfare offenses” and are typically what most people would not consider “serious,” such as traffic violations and selling alcohol to minors. Policymakers justify dispensing with mens rea requirements in such contexts by citing the need to deter businesses from imposing costs on society at large, or the burden that having to prove mens rea in these sorts of cases would overwhelm courts, or that the penalties are relatively small and carry little social stigma.

Florida’s legislature, however, went well beyond the normal boundaries of public welfare offenses in imposing strict liability for drug crimes that can carry significant prison terms — and thus violated the due process of law and traditional notions of fundamental fairness. As an alternative argument purporting to save its drug laws, Florida points to the availability of affirmative defenses, that these defenses (e.g., “I didn’t know it was cocaine”) to a presumption of guilty intent take the statute out of the (constitutionally dubious) strict liability category.

But a state may not simply presume the mens rea element of a crime: In Patterson v. New York (1977), for example, the Supreme Court held that prosecutors cannot reallocate the burden of proof by forcing a defendant to prove an affirmative defense. In requiring defendants to prove that they are “blameless” in these sorts of drug crimes, Florida’s statutes fail constitutional muster.

We urge the Eleventh Circuit to affirm the district court’s ruling that the offending state law unconstitutional.

Government at War With Itself

An op-ed in the Washington Post discusses why federal farm subsidies don’t even make sense from an activist government point of view. Most farm subsidies go for animal-feed crops, which can be viewed as a subsidy for meat production. At the same time, the government propagandizes the public to follow healthy habits and eat lots of fruit and vegetables, but not so much meat.

At www.DownsizingGovernment.org, we’ve come across many federal policies that are contradictory. The government tells the public that X is good, but then it takes actions to do the opposite. Here are some examples:

  • Government health experts tell new moms to breastfeed, but the government spends billions of dollars a year on the WIC program, which subsidizes baby formula for moms.
  • The government imposes strict rules on property owners to protect wetlands, but the government’s Corps of Engineers and Bureau of Reclamation have destroyed vast amounts of wetlands.
  • The government enforces strict anti-pollution laws, but the Department of Energy and other federal agencies have been notorious polluters.
  • The Corps of Engineers has spent billions of dollars building levees to protect against flooding, but its own infrastructure has worsened the damage caused by hurricanes.
  • The government imposes tight rules to ensure proper funding and to prevent abuse in private pension plans, but its own “pension plan”—Social Security—is a Ponzi scheme.
  • The Constitution says that the federal government is created to “insure domestic tranquility,” but the government has spurred violence with alcohol prohibition and now the drug war.

My Cato colleagues are probably aware of many other contradictions, and it seems that the more the government intervenes in society, the more it will work against both the people and itself.

When the State Takes the Children

The New York Times has an article today about how city officials take children away from parents because of marijuana use.  Here is an excerpt:

Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.

The article explains that even if a child is not immediately removed a “neglect finding” can kill prospects for certain jobs involving kids, such as a daycare assistant, and will make it easier for judges to order a removal down the road.  Even though marijuana use is very common among whites, the neglect and removal cases are mostly brought against minorities.

When drug warriors are challenged about criminalizing marijuana use, they typically deflect the question by saying, “we’re not locking up nonviolent marijuana users.”  Well that’s only because our prisons are overflowing already and they can’t convince enough lawmakers to build enough prison space to escalate the war further.  Second, below the prison numbers a low scale war continues apace–tens of thousands of arrests and court appointments and, as this article shows, child removal proceedings.

New York should follow California’s approach to this issue–if the state can demonstrate actual harm to children from marijuana use, then a neglect case can be brought.  Reporters should ask Mayor Michael Bloomberg whether his past drug use makes him unfit to be a parent or grandparent or to be in an occupation affecting the well-being of kids.

From Hell to Heaven

Cory Maye was in his home one evening minding his own business when his front door came crashing down.  Frightened that criminals were going to harm him and his child, Maye quickly retrieved a gun.  When his bedroom door came crashing down next, Maye fired.  When the lights came on, it turned out that the intruders were police officers and that Maye had killed one of them.  The nightmare had only just begun for Maye.  Police and prosecutors twisted a case of self-defense into a “murder” charge and they sought the death penalty.  Cato fellow Radley Balko read about the case when he was researching a paper concerning the militarization of police tactics and no-knock raids.  Radley then wrote about the injustice of Maye’s situation and word spread via the internet.  A new legal team took up the case and appeals followed.  When a court ordered a new trial for Maye, prosecutors offered a deal–plead guilty to a lesser charge and Maye would be set free because he had already served years in a Mississippi prison.  Maye took the deal even though many thought he should not have any criminal conviction on his record for what happened that night.  Still, it is hard to blame a guy for wanting to get out of prison to see his children just as fast as he possibly could.  Maye was released a few days ago and here’s a snap of him playing around with his son. 

Congrats to Maye.  Congrats to Radley.  And congrats to Maye’s lawyers at Covington and Burling.

Previous coverage here and here.

10 Years of Drug Decriminalization in Portugal

Ten years ago this month, Portugal rejected the conventional approach to drug policy–more laws, stiffer prison sentences, more police–and went the other way by decriminalizing all drugs, even cocaine and heroin.  The drug warriors predicted a disaster.  They said drug use would spike and there would be a public health crisis.  That did not happen.  As Glenn Greenwald showed in a 2009 Cato report, Portugal is doing better than before and in many respects is doing better than other countries in the European Union that take the hard-line, criminal approach to drug use.  The buzzword in Washington these days is “evidence-based research.”  Well, there you have it.

More here and here.   Thanks to the Huffington Post for the pointer.

“Cory Maye Will Soon Be Free”

…that’s what former Cato policy analyst, Reason senior editor and now Huffington Post reporter Radley Balko reports:

I’m in Monticello, Mississippi, this morning, where Circuit Court Judge Prentiss Harrell has just signed a plea agreement between Cory Maye and the state. Maye has plead guilty to a reduced charged of manslaughter, and has been resentenced to 10 years in prison, time he has already served. He’ll be sent to Rankin County for processing. He should be released and home with his family in a matter of days.

Cory Maye’s is a story about a paramilitary-style drug raid gone grotesquely wrong, a cautionary tale about the human costs of the War on Drugs, and a lesson in how a dedicated investigative reporter can throw a wrench in the ever-grinding wheels of injustice. If you’re unfamiliar with the case, and Radley’s role in it, watch the terrific Reason.tv video, “Mississippi Drug War Blues” below, and read this blogpost I wrote a couple of years ago, when Radley’s work first started drawing attention to the case: “The Cato Policy Analyst Who (May Have) Saved a Man’s Life.” We can remove the “may have” now.

And here’s Radley’s update at the Huffington Post.

40 Years of Drug Prohibition

It was 40 years ago today that President Richard Nixon said the “drug menace” had reached the dimensions of a “national emergency.”  Nixon asked Congress to allocate $155 million to fight drug abuse and requested a new central office in the White House to coordinate governmental efforts on the problem.  Thus began the modern drug war.  It’s true that criminal laws were already in place in many jurisdictions, but it was Nixon’s call for a “new, all-out offensive” that really started to ramp things up.  Each year brought calls for more money–and that  meant more police, more raids, more wiretaps, more arrests, and more prisons.  And more foreign intervention.

The Associated Press ran a good article that examined the 40 year policy and the trillion dollars that went into the policy.   Here’s an excerpt:

Using Freedom of Information Act requests, archival records, federal budgets and dozens of interviews with leaders and analysts, the AP tracked where [all the] money went, and found that the United States repeatedly increased budgets for programs that did little to stop the flow of drugs. In 40 years, taxpayers spent more than:

— $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.

— $33 billion in marketing “Just Say No”-style messages to America’s youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.

— $49 billion for law enforcement along America’s borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.

— $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.

— $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

Read the whole thing.

I hosted a debate this week to mark this unfortunate policy milestone.  Cato senior fellow Jeff Miron squared off against Dr. Robert DuPont, who was one of the key policy staffers in the Nixon White House in 1971.  Dr. DuPont remains convinced that the present policy approach is essentially correct.   Watch the event and decide for yourself.

In my 2000 book, After Prohibition, Milton Friedman noted that America’s drug war policy had dozens of negative consequences.  One consequence that he believed received too little attention was the policy’s effect on other people around the world.  Friedman said the policy was responsible for the deaths of “hundreds of thousands of people at home and abroad by fighting a war that should never have been started.”   The violence in Mexico confirms Friedman’s analysis.  The Los Angeles Times recently reported that more than 34,000 people have been killed during the government’s crackdown over just the past four years.

Ending the drug war is one of the signature issues for the Cato Institute.  The other think tanks in Washington, DC–Brookings, AEI, and Heritage–support the drug war.  We believe the drug war will eventually be widely recognized as a tragic mistake in much the same way as we presently look back upon the days of alcohol prohibition.

For additional Cato work related to drug policy, go here.