Controlled-Substance Abuse

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CONTROLLED-SUBSTANCE ABUSE

Throughout the quarter-century from 1965 to 1990 the federal government waged a frustrating "war" against the growing problem of trafficking in, and abuse of, marijuana, heroin, cocaine, and other drugs. The government's war on drugs raises a number of issues of constitutional dimension: To what extent does the equal protectionclause permit differences in the regulation of various controlled substances? How specific must regulations be to conform to the requirements of the due process clause? To what extent is the use of controlled substances protected by a constitutional right of privacy or by religious liberty ? Does the fourth amendment prohibition of unreasonable search and seizure contain an exception for seizure of illicit drugs? Does the prohibition of cruel and unusual punishment impose any limitations on the sanctions imposed on drug offenders?

The fourteenth amendment guarantee of equal protection of the laws has been interpreted to require a rational basis for governmental classifications. A classification is "underinclusive" if it does not include all who are similarly situated and "overinclusive" if it includes those who do not rationally belong with the other members of a prohibited class. The earliest efforts to regulate the abuse of controlled substances raised substantial issues under the equal protection clause, because they failed to include many drugs and tended to apply the same punitive sanctions to all drugs, despite substantial differences in their dangerousness. In 1937, for example, the Marijuana Tax Act classified marijuana with narcotic drugs, imposing the same harsh penalties for possession of marijuana as for heroin or cocaine. For more than thirty years, the drug policy of the United States recognized no distinctions among drugs. The same strategy was used to control all drugs, and that strategy was simply to keep escalating the penalties. Only one exception was recognized, and that was alcohol. Alcohol was treated as though it were not a drug at all. Drug treatment programs racked it up as a success if they converted a drug addict into an alcoholic. Separate federal bureaucracies were created to deal with alcohol abuse and drug abuse so that no one would get the idea that America's ten million alcoholics were addicted to a drug.

In 1970 the federal Controlled Substances Act codified a comprehensive scheme for the classification of drugs on five different schedules, depending on their potential for abuse, risk of addiction, and legitimate medical use. Penalties for trafficking vary substantially, depending on the schedule on which a drug is placed. Since 1970, continuous legal challenges have been mounted against the classification of marijuana on Schedule I, along with heroin, LSD, and other drugs having no recognized medical use. Other drugs, such as PCP, have been moved from a lower schedule to a higher one as awareness of the potential for their abuse has increased.

The guarantee of due process of law contained in both the Fifth and Fourteenth Amendments has been interpreted to require adequate notice of a criminal prohibition, to ensure both that potential violators can comply with the law and that law enforcement officers are not given broad authority to discriminate in the enforcement of the laws. Laws not meeting this standard are struck down as unconstitutionally vague.

In two spheres drug laws have raised substantial problems of vagueness. The first problem lies in the description of the prohibited drug itself. The development of "designer drugs" in clandestine laboratories has enabled new drugs to appear in the illicit market faster than laws can be amended to prohibit them. Congress responded in 1986 by prohibiting controlled-substances "analogues," which are defined as substances whose chemical structure is "substantially similar" to previously controlled substances. Legal challenges asserting that this language is unconstitutionally vague are currently pending.

Second, attempts to regulate the marketing of drug paraphernalia have run into vagueness challenges, because drug "paraphernalia" include common household objects, such as spoons and scales. In 1982 the Supreme Court upheld an ordinance regulating the sale of items "designed or marketed for use with illegal cannabis or drugs." The Court concluded that any problem of vagueness was cured by a requirement of proof of actual intent that the items be used for illegal purposes.

The constitutional guarantee of privacy has been interposed against many governmental efforts to regulate drug use, but the most significant battleground has been urine testing of employees to detect drug use. In 1989 the Supreme Court gave the green light to programs requiring drug testing of railway employees involved in train accidents and U.S. Customs Service employees applying for positions involving interdiction of drugs. The Court declared that the expectations of privacy are diminished for employees who participate in industries that are pervasively regulated or who are employed in drug enforcement efforts.

Whether drug use can ever be constitutionally protected as part of a religious exercise came before the Court in a 1990 case presenting a constitutional challenge to the discharge of Oregon employees who participated in a Native American Church ceremony that included the chewing of peyote buttons. In employment division, department of human resources v. smith, the Court declared that a general criminal prohibition of the use of peyote could be enforced even when peyote was used as part of a legitimate, bona fide religious ceremony. The dissenting Justices argued that preference was being shown to some religions over others, noting that the alcohol used for sacramental wine in Catholic services was exempted from the prohibition laws enacted in the 1920s.

The prohibition of unreasonable searches and seizures in the Fourth Amendment has frequently been viewed as an obstacle by police charged with the enforcement of drug laws. The exclusionary rule, which requires the suppression of illegally seized evidence, may result in the dismissal of drug trafficking charges if the illicit drugs were seized without a valid search warrant. A study of New York City police revealed that immediately after the exclusionary rule was first announced in 1961, arrest reports in half of all cases related that the defendant "dropped the drugs on the ground upon seeing the police officer." Any inquiry into the grounds for a search was thus avoided. During the prior year only fourteen percent of the reports claimed the defendant dropped the drugs. Obviously, the new rule did not cause an outbreak of "dropsy" in New York; it caused an outbreak of police perjury. Police were willing to lie to avoid application of the exclusionary rule to their searches.

Congress has frequently responded to the complaints of narcotics officers that the exclusionary rules make their jobs too tough. As part of President richard m. nixon's war on drugs, Congress enacted a no-knock entry provision for drug cases in 1970, providing that search warrants for drugs could dispense with the normal requirement that police knock and announce themselves before entering the premises to be searched. Police argued that the exemption was necessary for drug cases because drugs are quickly destroyed if violators are warned of the police presence. What was forgotten was that police occasionally make mistakes. A series of "wrong-door" raids led to shootouts that left four innocent people dead, including one police officer. In 1974, Congress repealed the no-knock provision, restoring the requirement of a knock on the door even in drug cases.

During the 1980s the argument that search and seizure requirements should be relaxed in drug cases gained a receptive ear in the Supreme Court. In case after case, the Court carved out exceptions to the requirements of probable cause and search warrants, citing the need for more pervasive police surveillance to prevent the smuggling of illicit drugs.

A common legislative response to the frustration of escalating drug use is simply to escalate the penalties for illegal possession or trafficking of drugs. Does the cruel and unusual punishment clause of the Eighth Amendment impose any limitation? In 1962 the Supreme Court struck down a California law that made it a criminal offense "to be addicted to the use of narcotics." The Court characterized addiction as an illness over which the victim had no control, and concluded it would be "cruel and unusual punishment" to imprison someone for simply being sick. Subsequent cases, however, have held that addiction offers no defense to someone arrested for such activities as possession of drugs or being intoxicated in public. The imposition of life prison sentences has been challenged as disproportionate to the seriousness of drug offenses, but the Supreme Court currently gives states a wide berth in setting the level of punishment for drug offenses.

In the early 1970s, New York's Governor Nelson Rockefeller successfully sponsored a law imposing mandatory life imprisonment for drug pushers. The law was hailed as the ultimate solution, one that would make drug selling such a serious offense that no one would want to take the risk. The total failure of that policy quickly became an embarrassment. Motorists began complaining that they could not drive down some streets in Harlem in broad daylight without being accosted at every corner by drug hustlers. The hustlers, of course, were addicts on the lowest rung of the distribution ladder. The threat of a mandatory prison sentence had little impact on them.

Today legislators are stymied. Although they have imposed a mandatory sentence of ten years to life and a fine of $100,000 for engaging in a drug enterprise, these penalties have no perceptible impact on the number of drug enterprises flourishing in America. A serious suggestion has been made that capital punishment is the answer.

A potent weapon against drug traffickers has been found in the enactment of forfeiture laws. Under the Comprehensive Forfeiture Act of 1984, federal authorities can seize any property derived from the proceeds of a drug transaction or any property used to facilitate a drug offense. Houses, businesses, automobiles, airplanes, and boats have been forfeited to the government. In 1990 the Supreme Court ruled that money paid to criminal defense lawyers for representation in drug prosecutions could also be seized, without violating the Sixth Amendment right to counsel. Courts have split on the question of whether the Eighth Amendment prohibition of cruel and unusual punishment requires that a forefeiture be proportionate to the seriousness of the offense. In one case, forfeiture of a house worth $100,000 was upheld even though the property was used to grow less than $1,000 worth of marijuana plants.

As the war on drugs escalates, the tension between law enforcement techniques and traditional constitutional liberties will increase. In applying a balancing test, courts can be expected to give greater and greater weight to the need to suppress drug trafficking. One may hope that the casualties in the war on drugs will not include the Constitution itself.

Gerald F. Uelmen
(1992)