America’s Failing Drug Control Laws

Block, Walter E.; Whitehead, Roy

doi:10.1007/978-3-030-28360-5_13

Walter E. Block⁵ &
Roy Whitehead⁶

Part of the book series: Palgrave Studies in Classical Liberalism ((PASTCL))

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Abstract

We abhor the use of addictive drugs. We believe that they are personally and professionally destructive. We publish these views of ours in opposition to the use of such substances at the commencement of this article to preclude the often encountered criticism that persons who oppose drug forfeiture and the so-called War on Drugs thereby advocate their use. Nothing could be further from the truth.

In section “I. Introduction: Welcome to the War” of this chapter, we express strong opposition to the current drug forfeiture laws that give some predatory law enforcement officials a financial motive to seek forfeiture rather than justice. We wish to express our high regard and appreciation to the many law enforcement officers who perform the thankless task of protecting our general welfare. We all owe them a great debt. This chapter explores the issues that arise in drug forfeiture situations, in particular, and the War on Drugs, generally. We discuss asset forfeiture, the source of the government’s demand for forfeited property, whether the recent Civil Asset Reform Act is really a reform of the drug forfeiture process or more likely a sham, the recent case involving evictions of grandparents for the drug-related sins of their grandchildren, the Congressionally mandated and High Court approved requirement that some sick people die in pain, and finally, the court-sanctioned requirement that children who dare to participate in dangerous activities like choir singing must urinate in the presence of their teachers, all in the name of the War on Drugs. We suggest a better way to reduce the drug problems of our society.

In section “II. A Case for the Legalization of Drugs”, we note that The United States Government has spent billions of dollars fighting the War on Drugs. Despite the best efforts of everyone involved, drug use continues. The argument presented in this article explores the many facets of the issue of the decriminalization of drugs. Under a system of decriminalization, drug usage could be monitored, drugs would be less likely to contain unknown adulterants, crime would be greatly reduced, and the incidences of overdose would decline. In section “III. An Objection”, we discuss the moral questions that arise about the decriminalization of drugs.

Congress is daily demanding accountability for failed corporate executives in the private sector. Where is the demand for accountability for the managers of failed government agencies like, we contend, the Drug Enforcement Administration? The media gleefully identifies Chief Executives of failing private corporations. Everyone has heard of Kenneth Lay of Enron. Who among us has heard of the government officials responsible for failed agencies such as the Immigration and Naturalization Service, The Department of Transportation’s Security Program, The Bureau of Indian Affairs, and the State Department and its incompetent visa officials? We contend that the public interest demands that the administrators of government agencies also be held accountable. We trust that this article will advance that public interest.

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Notes

1.
See, The Palmyra, 25 U.S. (12 Wheat.) 1, 14–15 (1827). There the court said, “The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing … [T]he proceedings in rem stands independent of, and wholly unaffected by any criminal proceedings in personam.” “No personal conviction … is necessary to enforce a forfeiture.” Id. at 15.
2.
416 U.S. 663 (1973).
3.
Id. at 665.
4.
Id.
5.
Title 24, section 2512 (a) (4) and (b) provide: “(a) The following shall be subject to forfeiture to the Commonwealth: (4) All conveyances, including aircraft, vehicles, mounts, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clauses (1) and (2) of this subsection.”
6.
416 U.S. at 664.
7.
Id. at 679.
8.
Prior to our American revolution, the much despised Writs of Assistance allowed officers of the Crown to collect a commission on forfeited goods. See, Eric Blumenson & Eva Nilsen, Policing For Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35 at 75 nn. 143–44 (1998). Founding father John Adams described James Otis’ 1761 courtroom argument against the Writs of Assistance as “Then and there the child of independence was born.” See, DAVID McCULLOUGH, JOHN ADAMS, SIMON & SCHUSTER (2001) p. 62.
9.
See footnote 3, Supra.
10.
See, Oliver Wendell Holmes, The Common Law 5 (1881).
11.
516 U.S. 442 (1996).
12.
Id. at 443.
13.
Id.
14.
Id.
15.
Mich. Comp. Laws, section 600.3801; Mich. Stat. Ann., section 27A3801 provides: “Any building, vehicle, boat, aircraft, or place used for the purpose of … prostitution … is declared a nuisance … and nuisances shall be enjoined and abated….”
16.
516 U.S. at 468.
17.
447 Mich. 719, 527 N.W.2d 483 (1994).
18.
447 Mich. at 722, 527 N.W.2d at 486.
19.
Citing our old friend, The Palmyra, 25 U.S. (Wheat) 1, 14 (1827) at 527 N.W.2d at 494n.32.
20.
“…nor shall any state deprive any person of life, liberty, or property, without due process of law.”
21.
447 Mich. at 741, 527 N.W. 2d at 494.
22.
See, Austin v. United States, 509 U.S. 602, 619 (1993), where the court said that holding an owner accountable for another’s activities rests “on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence.” And in Pearson Yacht, 416 U.S. 63, 689–90 (1974), the court suggested that the owner might be protected if he took “reasonable steps” to prevent wrongful use of the property.
23.
516 U.S. at 453.
24.
See once again, The Palmyra, 25 U.S. 1, 12 (Wheat) (1827).
25.
Dobbin’s Distillery v. United States, 96 U.S. 395, 401 (1878).
26.
Harmony v. United States, 43 U.S. 210 (1844).
27.
272 U.S. 465 (1926). Here, the case concerned an innocent buyer whose seller retained possession of the car long enough to use it to transport illegal liquor before turning it over to the buyer. The innocent buyer lost the car to forfeiture.
28.
516 U.S. at 446.
29.
Id. at 448.
30.
Id. at 454.
31.
Id.
32.
Id. at 455.
33.
Id. at 457.
34.
Justices Stevens, Breyer, Kennedy, and Souter.
35.
516 U.S. at 559n.1.
36.
516 U.S. at 560.
37.
For a compelling, and sometimes troubling discussion of law enforcement’s “economic stake” in forfeiture law See generally, Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 Chicago Law Review 35 (1998). See also, Anti-Drug Abuse Act of 1986, codified at 21 U.S.C., section 853(p) (1994), that allows the forfeiture of substitute property if the assets subject to seizure is no longer available. Now almost any property is fair game even if it cannot be connected to the crime.
38.
Comprehensive Crime Control Act of 1984, codified at 28 USC, section 524 (1994).
39.
The federal government may share forfeited property with any state or local law enforcement agency that participated in any act leading to forfeiture of property authorized by 19 USC, section 1616a(c).
40.
28 U.S.C. section 524(c)(1)(F) and Directive 90–5, The Attorney General’s Guidelines on Seized and Forfeited Property (July 1990).
41.
As there is in virtually all other fields of endeavor known to man.
42.
Some have argued that the courts have adopted a premise that drugs are so bad for society that “almost any law or law enforcement measure is validated,” Steven Wisotsky, Not Thinking Like a Lawyer: The Case of Drugs in the Courts, 5 Norte Dame J Legal Ethics & Pub Pol 651, 658 (1991).
43.
Caplin & Drysdale, Chartered v. United States, 419 U.S. 617, 629 (1989), and in a footnote in our often cited Calero-Toledo, 416 U.S. at 687 n26, “Seizure and forfeiture statutes also help compensate the Government for its enforcement efforts.”
44.
United States v. Reese, 3 F.3d 870, 874 (9th Cir. 1993).
45.
See J. Mitchell Miller & Lance Selva, Drug Enforcement’s Double-Edged Sword: An Assessment of Asset Forfeiture Programs, 11 Justice Q 313, 319 (1992).
46.
Id. at 325.
47.
Id. at 333.
48.
This policy was followed because police have a “financial incentive to impose roadblocks on the southbound lanes of I-95, which carry cash to make drug buys, rather than the northbound lanes, which carry the drugs, after all, seized cash will end up forfeited to the police department, while seized drugs can only be destroyed,” Richard Miniter, Ill Gotten Gains, 25 Reason 32, 34 (Aug/Sept 1993), quoting Patrick Murphy, former Police Commissioner of New York City.
49.
http://home.earthlink.net/~ynot/victims.html (last opened March 29, 2002).
50.
Report on the Death of Donald Scott, 37–41 (Office of District Attorney, Ventura County, California, Mar. 30, 1993). The Border Patrol had conducted two ground reconnaissance trips into the property and found no marijuana plants.
51.
Id. at 11.
52.
Id. at 37–41.
53.
The supporting affidavit falsely stated that ground surveillance had confirmed the presence of marijuana plants. Id. at 42.
54.
Id. at 16, 50–52.
55.
Id. at 16.
56.
See Supra, footnote 10, about Writs of Assistance.
57.
See Steven Wisotsky, Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights, 38 Hastings L.J. 889, 895 (1987).
58.
Pub. L. No., 106-185, section 2, 2000 U.S.C.C.A.N. (114 Stat 202, 225) codified at 18 U.S.C. section 983.
59.
18 U.S.C. section 983(c)(1).
60.
18 U.S.C. section 983(c)(3).
61.
18 U.S.C. section 983(b)(1).
62.
18 U.S.C. section 983(d).
63.
18 U.S.C. section 983((f)(1).
64.
Amending the Federal Tort Claims Act at 28 U.S.C. section 2680 (c).
65.
18 U.S.C. section 983 (a)(2)(E).
66.
18 U.S.C. section 983 (a).
67.
It is reported that an attempt by Congressman Henry Hyde to rectify the troubling problems of asset distribution, conflicts of interest, and accountability that we discuss here were thwarted largely by the vigorous opposition of the law enforcement community. See Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 The University of Chicago Law Review 35, 107–108 (1998).
68.
18 U.S.C. section 983(c)(1).
69.
One study shows that 89% of all forfeitures were uncontested and that 80% of all forfeitures occur administratively, See Supra footnote 67, Blumensen & Nilsen, Policing For Profit: The Drug War’s Hidden Economic Agenda, 35, 50 n61. And, of course, the Supreme Court recently told us that prisoners are not even entitled to actual notice of the forfeiture of drug-tainted property. Due process only requires notice reasonably calculated to apprise the prisoner of the forfeiture proceedings. See, Dusenberry v. United States, 534 U.S. 161 (2002). One can only speculate on how many prisoners ever receive notice.
70.
18 U.S.C. section 983(b)(1).
71.
18 U.S.C. section 983(b)(1).
72.
18 U.S.C. section 983(d).
73.
Id.
74.
Id.
75.
18 U.S.C. 983(d)(3)(A).
76.
18 U.S.C. section 983(d)(3)(B).
77.
See Department of Housing and Urban Development v. Rucker, 535 U.S.__, 152 L. Ed 2d 258 (2002).
78.
In this and subsequent discussion of HUD and public sector housing, we abstract from the problems, moral and economic, which emanate from this policy. On this see Tucker, William, The Excluded Americans: Homelessness and Housing Policy, Chicago: Regnery-Gateway, 1990; Jacobs, Jane (1989), The Death and Life of Great American Cities, New York: Vintage.
79.
Codified as 42 U.S.C., section 11901 (3) (1994).
80.
42 U.S.C., section 1437d (l)(6) (1994, Supp. V).
81.
See, 56 Fed. Reg. 51560, 51567 (1991), the strict liability regulation says that there is authority to evict when the tenant did not know, could not foresee, or could not control the other occupants.
82.
535 U.S.__, 152 L. Ed 2d 258 (2002).
83.
Id. at 535 U.S.___, 152 L. Ed 2d 264, 265.
84.
Id. at 535 U.S.__, 152 L. Ed at 266. See generally, Charles Lane, Supreme Court Upholds Public Housing Drug Law, Washington Post, March 27, 2002, A4., for the ages and physical capacity of the tenants.
85.
237 F.3d 1113 (2001).
86.
Id. at 1120.
87.
Id.
88.
535 U.S.__, 152 L. Ed 2d at 266.
89.
Id. at 535 U.S.__, 152 L. Ed 2d at 267. 237 F.3d 1124–25 (citing Scales v. United States, 367 U.S. 201, 224–25 (1961) and Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482 (1915)).
90.
Id. at 152 L. Ed 2d 269. In Scales v. United States, 367 U.S. 201, 224–25 (1961), the government criminally charged Scales with knowing membership in an organization that advocated the overthrow of the government, 367 U.S. 203, 224 (1961). In Southwestern Telegraph& Telephone Co. v. Danaher, 238 U.S. 482 (1915, an Arkansas statute forbade discrimination amongst customers of a telephone service.
91.
Rucker at 152 L.Ed. 2d at 269.
92.
See Supra, footnote 43.
93.
Cal. Health & Safety Code Ann., section 11362.5 (West. Supp. 2001).
94.
Id.
95.
Id.
96.
See, United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1092 (ND Cal. 1998).
97.
Specifically prohibiting the distribution, manufacturing, and possessing with the intent to distribute a controlled substance. 21 USC 841(a).
98.
21 U.S.C. 823(f).
99.
United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. at 483 (2001).
100.
190 F.3d at 1115–15. The Court of Appeals instructed the lower court to consider the criteria for a medical necessity exception to the Act. 190 F.3d at 1115.
101.
532 U.S. at 491.
102.
Id.
103.
Id. at 493.
104.
190 F.3d at 1115.
105.
532 U.S. at 495.
106.
See, Seminole Tribe of Fla. v. Florida, 514 U.S. 44, 55 (1996).
107.
Margie Mason, City Berates DEA Chief For Pot Bust, The Washington Times, Feb. 14, 2002, A10.
108.
Id.
109.
See, Editorial, The Arkansas Times, March 29, 2002, p. 22. col. 1.
110.
Id.
111.
Board of Education of Pattawatomic County v. Earls, 70 U.S.L.W. 4737 (U.S. Jun. 27, 2002) (No. 01-332).
112.
Establishing “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
113.
242 F.3d 1264, 1270 (2001).
114.
Id.
115.
On this approach to avoiding the Fourth Amendment See Skinner v. Railway Labor Executive’s Assn., 489 U.S. 602, 609 (1989) (the government seeks to prevent the development of unsafe conditions) and Treasury Employees v. Von Raab, 489 U.S. 656, 667–668 (1989).
116.
On this contention that the courts have allowed their concern about drugs to color their approach to Constitutional issues, See Supra footnote 42.
117.
Even Justice Beyer (concurring) says “I cannot know whether the school’s drug testing program will work.” 70 U.S.L.W. at 4742. Another relevant indication of the court’s we don’t know what to do but we have got to do something, even if it’s wrong, approach.
118.
515 U.S. 646, 657, where the majority goes to great length to describe the expectation of nudity and lack of privacy in the football team’s dressing room. They say an “element of ‘communal undress’ is inherent in athletic competition.” Id. Apparently the purpose is to argue that nudity is common to and accepted by teenagers. But is it amongst the shy and modest, in the choir and computer club? The Court has been watching too many Britney Spears videos.
119.
70 U.S.L.W. at 4739.
120.
Id.
121.
Id. at 4740. After having admitted that “[U]rination is an excretory function traditionally shielded by great privacy.” Id. (citation omitted). Now, apparently everywhere but at public schools.
122.
Id at 4742.
123.
“School sports are not for the bashful.” Vernonia, 515 U.S. at 657. But the choir, sewing, or computer club might be. The majority is mixing the well-known apples and oranges.
124.
Justice Ginsberg (dissenting) makes this point citing a brief by the American Academy of Pediatrics. 70 U.S.L.W. at 4744.
125.
520 U.S. 305 (1997).
126.
Id. at 321.
127.
70 U.S.L.W. at 4740.
128.
70 U.S.L.W. at 4743.
129.
Id.
130.
Id. “[t]he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for the school testing policy.” Id. So a problem is not needed? It is enough that some other school, somewhere, has a problem like that of the out of control student use found in Veronoia. See Vernonia, 515 U.S. at 648.
131.
70 U.S.L.W. at 4742 (Justice Beyer concurring) citing C. Beard & M. Beard, New Basic History of the United States 228 (1968).
132.
Budget of the United States Government, Fiscal Year 2001. Accessed November 5, 2000. http://w3.access.gpo.gov/usbudget/fy2001/pdf/budget.pdf.
133.
Adam Marcus. Health Scout, Drug Use a Family Affair. Thursday, August 24, 2000. Accessed November 4, 2000. http://www.healthscout.com/cgibin/WebObjects/Af?id=101667&ap=107.
134.
Steven R. Belenko, Crack and the Evolution of Anti-Drug Policy (Connecticut: Greenwood Press, 1993), 3.
135.
Steven R. Belenko, Crack and the Evolution of Anti-Drug Policy (Connecticut: Greenwood Press, 1993): 6.
136.
George Beschner and Alfred S. Friedman, Teen Drug Use (Massachusetts: Lexington Books, 1986): 55.
137.
U.S. Census Bureau, Statistical Abstract of the United States (Washington: G. P. O., 1999): 152.
138.
Michael J. Hindelang, Sourcebook of Criminal Justice Statistics (Washington, D. C.: U.S. Department of Justice, Bureau of Justice Statistics, 1999): 371.
139.
John Stuart Mill, On Liberty (New York: W. W. Norton & Company, 1975): 89.
140.
John Stuart Mill, On Liberty (New York: W. W. Norton & Company, 1975): 90.
141.
Walter Block, “Drug Prohibition and Individual Virtue,” Review of Political Economy 8, 4 (1996): 435; see also Block, Walter (1993). Drug Prohibition: A legal and economic Analysis. Journal of Business Ethics; vol. 12; pp. 689–700; Carpenter, Ted Galen. (December, 1985). The U.S. Campaign Against International Narcotics Trafficking: A Cure Worse Than the Disease. The Cato Institute, Washington D.C.; Cussen, Meaghan and Walter Block, “Drug Legalization: A Public Policy Analysis,” American Journal of Economics and Sociology, Vol. 59, No 3, July 2000, pp. 525–536; Holloway, Jason and Block, Walter. (April, 1998). Should Drugs be Legalized? West Coast Libertarian; vol. 18, #2; pp. 6–7; Szasz, Thomas Stephen, Ceremonial chemistry: the ritual persecution of drugs, addicts, and pushers. Holmes Beach, Fla.: Learning Publications, 1985; Szasz, Thomas Stephen, Our right to drugs: the case for a free market, New York: Praeger, 1992; Thorton, Mark. (1991). Alcohol Prohibition was a Failure (The Cato Institute, Washington D.C.).
142.
Walter Block, “Drug Prohibition and Individual Virtue,” Review of Political Economy 8, 4 (1996): 435.
143.
Lawrence Kohlberg, Essays on Moral Development, Volume I: The Philosophy of Moral Development (San Francisco: Harper and Row, Publishers, 1981): 150.
144.
Rosalie Liccardo Pacula, “Economic Modeling of the Gateway Effect,” Health Economics 6, 5 (1997): 521.
145.
William A. Niskanen, “Economists and Drug Policy,” Carnegie-Rochester Conference Series on Public Policy 36 (1992): 233.
146.
John R. Lott, “An Attempt at Measuring the Total Monetary Penalty from Drug Convictions: The Importance of an Individual’s Reputation,” Journal of Legal Studies 21, 1 (1992): 185.
147.
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148.
Roger LeRoy Miller, Daniel K. Benjamin, and Douglass C. North, The Economics of Public Issues Massachusetts: Addison-Wesley, 1999): 37.
149.
Walter Block, “Drug Prohibition and Individual Virtue,” Review of Political Economy 8, 4 (1996): 435.
150.
Henry Saffer and Frank J. Chaloupka, “The Demand for Illicit Drugs,” In Abstracts of Working Papers in Economics (AWPE) (1996): 14.
151.
William A. Niskanen, “Economists and Drug Policy,” Carnegie-Rochester Conference Series on Public Policy 36 (1992): 241.
152.
Henry Saffer and Frank J. Chaloupka, “The Demand for Illicit Drugs,” In Abstracts of Working Papers in Economics (AWPE) (1996): 14.
153.
“A Shock to the System: Drugs in Prison,” The Economist 340, 7974 (1996): 54.
154.
Kevin Marron, “High Times Doing Hard Times: Packed with Dealers and Substance Abusers, Canada’s Prisons Have Become a Lucrative Market for the Drug Trade,” Maclean’s 109, 13 (1996): 50.
155.
John Stuart Mill, On Liberty (New York: W. W. Norton & Company, 1975): 89.
156.
William A. Niskanen, “Economists and Drug Policy,” Carnegie-Rochester Conference Series on Public Policy 36 (1992): 240.
157.
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158.
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159.
United States Sentencing Commission. Special Report to the Congress: Cocaine and Federal Sentencing Policy. 95. February 1995. Accessed October 1, 2000. http://www.ussc.gov/crackexec.htm.
160.
United States Sentencing Commission. Special Report to the Congress: Cocaine and Federal Sentencing Policy. 95. February 1995. Accessed October 1, 2000. http://www.ussc.gov/crackexec.htm.
161.
United States Sentencing Commission. Special Report to the Congress: Cocaine and Federal Sentencing Policy. 96. February 1995. Accessed October 1, 2000. http://www.ussc.gov/crackexec.htm.
162.
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163.
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Roger LeRoy Miller, Daniel K. Benjamin, and Douglass C. North, The Economics of Public Issues Massachusetts: Addison-Wesley, 1999): 33.
165.
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166.
http://www.worldnetdaily.com/bluesky_keyes/20000603_xcake_drug_war_t.shtml.
167.
He states: “In fact, many people expect me to agree with the moral case against drug laws because I believe that respect by government for the moral capacity of free citizens is so central to the preservation of our way of life. I am indeed a moral libertarian—and I think America is founded on moral libertarian principles. But this does not mean that I believe our drug laws must be repealed on moral.
168.
For an extended discussion of this issue, see Carey, George W., ed., Freedom and Virtue: The Conservative / Libertarian Debate, Wilmington DE: Intercollegiate Studies Institute, 1998 [1984].
169.
See on this Mill, John Stuart, On Liberty, N.Y.: Prometheus, 1986 [1859].
170.
See on this Block, Walter, “Libertarianism vs. Libertinism,” The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. 11, No. 1, 1994, pp. 117–128.
171.
See Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973; Rothbard, Murray N., The Ethics of Liberty, New York: New York University Press, 1998 (1982).

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Loyola University, CARROLLTON, LA, USA
Walter E. Block
University of Central Arkansas, Conway, AR, USA
Roy Whitehead

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Block, W.E., Whitehead, R. (2019). America’s Failing Drug Control Laws. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_13

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