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Drug War Shrinking Bill of Rights
Radley Balko | FOXNews | 01/27/2005

This week, the U.S. Supreme Court ruled that if you're pulled over by the police for speeding or, say, not wearing your seatbelt, they may bring out drug-sniffing dogs to investigate your car without violating the Fourth Amendment.

On the Volokh Conspiracy blog, Orin Kerr observes that Justice John Paul Stevens , writing for the majority, indicated that the Fourth Amendment protects not against violations of privacy or invasiveness, but against violation of property rights. Since one can't have property rights for illicit drugs, a search can't violate the Fourth Amendment.

It's a troubling precedent. It's hard to see how any police search would violate any rights under Justice Stevens' ruling, so long as the search turned up something illegal. That sort of undermines what the Fourth Amendment is all about.

That case is just the latest in a number of court rulings and pieces of legislation that have been chipping away at the criminal justice rights of substance-abuse suspects. Ours is quickly becoming a two-tiered criminal justice system, one in which there are one set of criminal protections for drug and alcohol defendants, and a broader set of protections for everyone else.

Last month in Virginia, pain physician Dr. William Hurwitz was convicted on dozens of counts of drug distribution. Prosecutors and the foreman of the jury that convicted him conceded that Hurwitz didn't knowingly participate in a drug trade, but because the pain medication he prescribed made it to the black market, he was nevertheless found guilty. He faces life in prison. Proving intent — as is required to secure a conviction in nearly every other crime — apparently wasn't necessary.

The Drug War has been eating at the Bill of Rights since its inception. Asset forfeiture laws, for example, allow law enforcement to seize the assets of suspected drug dealers before they're ever convicted of a crime. Even if the defendant is acquitted or the charges are dropped, the mere presence of an illicit substance in a car or home can mean the loss of the property, on the bizarre, novel legal principle that property can be guilty of a crime.

Thanks to mandatory minimum sentencing laws, a judge in Utah recently had no choice but to sentence a first-time marijuana dealer to 55 years in prison (he had a pistol strapped to his ankle during the one-time deal, though he never brandished it). Frustrated but hamstrung by drug laws, the judge in the case noted that just hours earlier, he had sentenced a convicted murderer to just 22 years for beating an elderly woman to death with a log. Courts have carved out a "drug war exemption" in the Bill of Rights for multiple search and seizure scenarios, privacy, wiretapping, opening your mail, highway profiling, and posse comitatus — the forbidden use of the U.S. military for domestic policing.

The other area where criminal protections are withering in the face of substance-abuse hysteria is in Driving Under the Influence or Driving While Intoxicated cases.

The most notable example is the 1990 case of Michigan vs. Sitz , where the Supreme Court ruled that the problem of drunk driving was so pervasive, the Court could allow "random sobriety checkpoints" in which cops stop motorists without probable cause and give them breath tests, a practice that would otherwise again violate the Fourth Amendment.

The Court has since ruled that the urgency of the drunken driving problem gives states the option to legislate away a motorist's Sixth Amendment right to a jury trial and his Fifth Amendment right against self-incrimination. In 2002, the Supreme Court of Wisconsin ruled that police officers could forcibly extract blood from anyone suspected of drunk driving. Other courts have ruled that prosecutors aren't obligated to provide defendants with blood or breath test samples for independent testing, even though both could be done relatively easily.

State legislatures have pounced on these rulings. The state of Washington just passed two laws remarkable in their disdain for everything our criminal justice system is supposed to represent. The first instructs juries in drunk driving cases to consider the evidence "in a light most favorable to the prosecution," an evidentiary standard that's unheard of anywhere else in criminal law. The second mandates that breath test evidence be admissible, no matter what — even if the defense can prove that the breath test machine was broken, or jiggered toward higher readings.

Last year, Pennsylvanian Keith Emerich had his license revoked by state authorities after he revealed to his doctor during an emergency room visit that he sometimes drinks a six-pack of beer per day. His doctor reported him. Emerich wasn't accused or charged with drunk driving. In a bizarre twist on the principle of "presumption of innocence," Emerich must now prove to the state that he doesn't drive after drinking before he can get his license back.

More and more states are taking advantage of the Supreme Court's granted exemption to a right to a jury trial for DUI-DWI suspects, particularly in states where judges are elected, not appointed. That, of course, is because elected judges deemed insufficiently harsh on such defendants can have their "leniency" used against them when it comes time for re-election.

Though no such bill has yet to be signed into law, several state legislatures have also now considered bills that would mandate ignition interlock devices in every car sold in the state. New Mexico's version of the law would require all drivers to blow into a tube before starting their car, then again every ten minutes while driving. Drivers over the legal limit would not be able to start their cars or, if already on the road, given a window of time to pull over. Onboard computer systems would keep data on each test, which service centers would download once a month or so and send to law enforcement officials for evaluation.

The problem, as Thomas Jefferson famously said, is that the natural process of things is for liberty to yield and for government to gain ground. It would take a rare and brave politician to stand up and say that we need to roll back or reconsider our drug laws, or that it's unfair to give accused murderers or rapists more rights than we give DWI defendants. But that's exactly what needs to happen.

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reggie_the_dog

Imagine having to blow in a tube every 10 minutes.

You are in bumper to bumper rush hour traffic. You are constantly shifting gears 1 then 2 then 3 then 2 the N the 1 then 2, now you have to also grab a tube and blow into it every 10 minutes, 6 TIMES AN HOUR, at the same time you have to drive no handed to shift and use the little blow tube you cannot talk on a phone because that would mean your hand was not on the wheel....great.............just wait until the Black Boxes in your car radio each and every one of your speeding violations, even 1 MPH over, to the cops and you get nailed with a ****load of tickets........They no longer want us to be free to move about the country. They want us to go to work, go home, go to work, go home, then go to the stores and spend on the weekend, then go home, then go to work............

whats next, a blow tube for alcohol tests on our bicycles, on our hunting rifles, on our shoes (can't be drunk in public)??????

vladimir

the supreme court is supposed to protect the constiution, and the rights given to citizens in the constitution. i have always felt that they do a fairly good job of making objective rulings based on what the constitution says, or if something wasnt clear, usually had a good interpretation of the constitution to back up their ruling.
this, on the other hand, makes me lose all respect for the supreme court. they have blatantly disregarded the constitution, and made up some bs to justify it. these are supposed to be the top law experts in the country, but on this ruling showed absolutely no knowledge of the most important laws in the country, the bill of rights.
disgusting.

Stephanie S.

Stories such as this have pretty much convinced me that "lawmakers" in Washington indeed, do not have "the best interests of the people" in mind.
It is simply impossible, as a rational, honest and half-way intelligent person, to blurb such as the one above and feel good about Mandatory Sentencing Laws. These laws scare the hell out of me, not just for myself, but for anyone who smokes. This government is antiquated and needs a serious overhaul.


peace

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"See, in my line of work you got to keep repeating things over and over and over again for the truth to sink in, to kind of catapult the propaganda." —George W. Bush, Greece, N.Y., May 24, 2005 (Listen to audio)

Plainsman1963

What gives me hope (and frustrates the hell out of me at the same time) are the judges that are making it known they don't like the mandatory minimums either.

It would be nice to get the country back into the hands of the people, but when the people relax their grasp and let it slip away...

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"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." - Claire Wolfe

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Murdock

When enough people want change.. then things will change..