Topic: Law and Civil Liberties

School Strips Student of Clothes, Rights

A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school’s drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana’s backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse’s office and ordered her to undress. Not finding any pills in Savana’s pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana’s genital area and breasts also failed to reveal any contraband.

Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.

Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.

In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.

New Study: ‘Drug Decriminalization in Portugal’

On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm.

In a new study, constitutional lawyer and Salon.com writer Glenn Greenwald examines the Portuguese model and the data concerning drug-related trends in Portugal, and argues that, “judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.”

Greenwald will speak at the Cato Institute Friday, April 3, about the success of the decriminalization program.

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Former Prosecutor, Judge Calls for Drug Legalization

Many of those most involved in the drug war both at home and abroad recognize that it is an expensive failure, having had little impact of drug consumption while fostering crime and undermining civil liberties.  In fact, many former cops, prosecutors, and judges have joined together in Law Enforcement Against Prohibition.

A former Orange County, California prosecutor and judge who once locked up drug offenders now advocates relaxing the drug laws.  The Los Angeles Times has just published Steve Lopez’s interview with Jim Gray:

All right, tell me this doesn’t sound a little strange:

I’m sitting in Costa Mesa with a silver-haired gent who once ran for Congress as a Republican and used to lock up drug dealers as a federal prosecutor, a man who served as an Orange County judge for 25 years. And what are we talking about? He’s begging me to tell you we need to legalize drugs in America.

“Please quote me,” says Jim Gray, insisting the war on drugs is hopeless. “What we are doing has failed.”

As far as I can tell, Gray is not off his rocker. He’s not promoting drug use, he says for clarification. Anything but. If he had his way, half the revenue we would generate from taxing and regulating drugs would be plowed back into drug prevention education, and there’d be rehab on demand.

So here he is in coat and tie – with a U.S. flag lapel pin – eating his oatmeal and making perfect sense, even when talking about the way President Obama flippantly dismissed a question about legalizing marijuana last week during a White House news conference.

“Politicians get reelected talking tough regarding the war on drugs,” says Gray. “Do you want to hear the speech? Vote for Gray. I will put drug dealers in jail and save your children.”

I had gone to visit Gray in part to discuss his support for a bill introduced last month by Democratic San Francisco Assemblyman Tom Ammiano, who is calling for marijuana to be regulated and taxed much like alcohol.

There’s no good answer to drug abuse.  But turning a health problem into a criminal law problem certainly is not the answer.  It’s time to take the immense profit out of the drug market as have other countries, such as Portugal, which has decriminalized drug use.

Taxpayer Financing of Campaigns Returns

Taxpayer financing of congressional campaigns has returned.

Yesterday Senators Richard Durbin (D-IL) and Arlen Specter (R-PA) introduced a modified version of their public financing bill first proposed in 2007, now as then called the Fair Elections Now Act (FENA).  The older version included “free media vouchers” and discounted ad rates for television; the new model focuses more on small contributions and matching funds from the federal treasury.

These bills to finance campaigns with government revenue are often introduced in Congress and rarely make any headway, much less pass either chamber.  Their perennial failure is not difficult to understand. Members are interested in campaign finance regulations that make it more difficult for challengers to raise money.  They are not interested in giving candidates federal revenue to run against incumbents. Members are especially unwilling to fund campaigns because the public takes a dim view of  using taxes in this way.

FENA tries to avoid public opposition by creating the appearance that taxpayers do not actually fund this scheme.

As Politico reports:

In the Senate version, the public money would come from assessing the country’s largest government contractors with a small surcharge… In the House, the money would come from the sale of broadcast spectrum.

But the question should be asked: if public financing of campaigns will actually achieve all the great things claimed by its proponents, shouldn’t the public be asked to pay the bill? After all, the public can expect to receive the promised benefits. Why should the bill be financed by government contractors and the sale of public assets?

We know the answer to these questions. Durbin and Specter have to obscure the role of taxes in these schemes because the public would oppose the bill if taxpayers were on the hook for the funding. Yet the senators obscure rather than eliminate the role of the taxpayer who will have to pay higher levies to fund more expensive government contracts or to replace the money that might have been obtained from the sale of the spectrum.  Once the FENA lunch turns out not to be free, will voters feel like paying the tab?

The rationale for the new program also merits attention. In the past, advocates of taxpayer financing argued that private financing of campaigns corrupted representation, policymaking, and the general political culture.  Replacing private contributions with public financing would, it was claimed, remove private interests and end corruption.  That rationale appealed to most of the supporters of  public financing; they tend toward the left politically and had little trouble believing the Republicans running Congress – all of them – were corrupt.  But 2006 brought the Democrats back to power, and general claims of corruption no longer fit the background assumptions of both powerful legislators and supporters of public financing. So we now hear little about corruption and a lot about how FENA will free up legislators to “tend to the people’s business.”

Will “tending to the people’s business” be enough to convince Americans to spend tax dollars funding congressional campaigns at a time of record public sector deficits brought about by reckless spending on bailouts and much else?

The question answers itself.

When the Government Takes Your Money, It Takes Your Property

When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.

The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation.  They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.

The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees).  The McClungs have now asked the Supreme Court to review their case.

Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.

Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use).  The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.

Court Embraces the Spirit of Aloha

Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union.  In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.

Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union.  This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.”  It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.

Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.

Further Cato materials on the above: Here’s our brief in the case, Hawaii v. Office of Hawaiian Affairs.  Here are articles I wrote on the case and on the on the Akaka Bill.  Here is a write-up of a debate I had at the University of Hawaii last month.  Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) – where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.

Monday Podcast ‘The Politics of Medical Marijuana’

As of this writing, 13 states have passed legislation legalizing medical marijuana. President Obama’s pledge to stop raiding medical marijuana facilities was met with praise from opponents of the drug war, but what does it mean for the future of drug policy?

In Monday’s Cato Daily Podcast, Rob Kampia, executive director of the Marijuana Policy Project, explains his organization’s goals and strategies for ending marijuana prohibition in the United States.

Our society is not quite ready yet to completely end marijuana prohibition. So what we want to do is keep as many people from being arrested and put in jail as possible in the short run. One way of doing that is to legalize medical marijuana state by state.

Kampia spoke at a policy forum on medical marijuana at the Cato Institute in March.