(Just say Nolo Contendre)
                              Dan Baum
Of all the wars the United States has fought since 1945, not one
has enjoyed the popularity of the War on Drugs. Americans tell
pollsters they're more afraid of drugs than of unemployment or
the deficit; drug enforcement, in fact, is one of the few
government services for which people say they're willing to pay
higher taxes. The concensus crosses racial, gender, class,
ideological and geographical lines, so it's sometimes hard to
tell the difference between the anitdrug rhetoric of, say, Jesse
Jackson and George Bush.
Which should come as no suprise. THe horrors of drug abuse are
so lavishly documented that in a single day it's possible to
hear a report on _Good Morning America_ about a Coast Guard
marijuana seizure off Savannah, Georgia; then read in the
morning paper about a drive-by shooting in Los Angeles; glance
at a drug-free-workplace poster over the water fountain; listen
to a call-in radio confessional about addiction; catch up on
Richard Dreufuss's battle against cocaine while waiting in line
at the Safeway; hear from the kids about their D.A.R.E. "drug
education" program at school; watch a "kingpin" brought to
justice on _Miami Vice_; pop in a video of _New Jack City_; and
wind up the day by participating in a crack-house raid on the 10
o'clock news.
This wide and shallow drug education obscures a horror that is
harder to drmatize; the gutting of our civil liberties. While
the violence and excitement of the War on Drugs hogs the
spotlight, the Reagan-Bush-Quayle Administration is backstage
building an uprecedented federal apparatus for putting people in
prison. More Americans are in federal prison today for drug
crimes than were in federal prison for all crimes when Ronald
Reagan took office. The United States has a bigger portion of
its population behind bars than any other country, including a
female prison population that has doubled in six years. And half
the Americans in prison today are black, even though only about
an eighth of the population is. The United States, in fact, has
a rate of black male incarceration five times that of South
Africa. More American black men are in prison than are in
college. The Justice Department estimates that by 1995 mare than
two-thirds of all convicts will be inside for drugs. This isn't
a war on drugs; it's a jihad against people who use them.
And that includes  anybody who has even the most casual contact
with drugs. "User accountability" is the buzzword in President
Bush's latest National Drug Control Strategy, and people are
being arrested for simple possesion at twice the rate they were
in 1980. Most drug users aren't violent or dysfunctional, the
strategy says, but they should be punished anyway because "the
casual user imparts the message that you can still do well in
school or maintain a career and family." For that, Bush wants
casual users imprisoned as criminals, ejected from public
housing, deprived of driver's licenses and cut off from both
student loans and welfare. Criminalizing victimless drug use
uncouples behavior from the societal harm it may cause in much
the same way that archaic morality laws against consensual sex
did. But a quarter million Americans aren't in prison from
consensual sex; they're in prison for drugs. That single,
hopeless fact should at least suggest a serious debate about
decriminalization. But instead, the War on Drugs has effectively
turned a blue law into the biggest prison-filler in the land and
loosed an army of federal police to enforce it. Alongside the
familiar newspaper stories about innocent victims of drugs,
we're beginning to see articles about innocent victims of drug
policy, such as landlords whose buildings are confiscated
because of tenants who use drugs, or whole families evicted from
public housing for the sins of one member.
Meanwhile, the "drug problem" and the violence associated with
it show no real sign of diminishing. The drugs are getting more
serious, or at least the enforcement is; at the beginning of the
1980's two-thirds of all drug arrests were for pot and the rest
were for heroin, cocaine and other drugs. Now that ratio is
reversed. What hasn't changed, though, is that although drug
"pushers" are supposedly the target of the war, twice as many
people are arrested for drug possesion as for dealing. Arrest
figures and wildly inflated "street values" of seized cocaine
have replaced the Vietnam-era body count, and are about as good
a measure of who is winning the war. Addiction isn't the
government's first concern; treatment and prevention get less
than half the funding of enforcement. Instead, the goal is
simply to lock people up.
Amercans have from the very beginning used drug laws as an
excuse to spy on and harass their political or ethnic enemies.
The country's first drug ban explicitly targeted the opium of
"the heathen Chinee." The first marijuana laws were passed by
states fearing an immigration wave of "beet peons" from Mexico.
Cocaine was first banned in the South to prevent an uprising of
hopped-up "cocainized Negroes."
The War on Drugs has let the government concentrate unprecedented
police power inside the Beltway. The total federal budget has
increased elevenfold since 1980. (The United States spends half
again as much on the drug war as it does on the Envirionmental
Protection Agency.) Bush has doubled the corps of federal
prosecuots, and while state-level wiretaps decreased during the
eighties, federal wiretaps almost quadrupled. Even Cheif Justice
William Rehnquist --no softy on drugs-- took it upon himself in
February to chastise the Justice Department for overburdening
the federal courts with petty drug cases.
It used to mean something to "make a federal cases out of it."
Now, though, local police and the idea of "local control" are
almost irrelevant; first-offense marijuana possession is on the
book as a federal crime, with a mandatory five-year penalty
attached. "Every year they find more crimes to federalize," says
Scott Wallace, legislative director for the National Association
of Criminal Defense Lawyers in Washington, D.C. "What's next, a
national police in brown shirts?"
Not satisfied merely to take over huge numbers of new drug
cases, the Justice Department last year started combing the
files of people who have already done prison time in state drug
cases; then they pin a federal rap on them and send them back to
prison for the same crime. Fifty-year-old Donny Clark made a
mistake in 1985 and got caught with 900 marijuana plants on his
Manatee County, Florida, farm. He served a year in state prison
and forgot all about it. But last year, the Feds busted a pot
ring in the area and decided Clark had taught the perps their
agronomy, and in November, a federal judge sent him to the
Federal Correctional Institue at Marianna, Florida, for the rest
of his life without hope of parole. "Formally, the charge was
conspiricy," Clark's prosecutor, Assistant U.S. Attorney Walter
Furr, told me, "but the man was charged based on what was found
in the search warrant in 1985." Simply put, Clark has been
punished twice for those 900 plants. A Florida Judge thought the
crime was worth a year; Congress gave him life without parole,
even though that mandatory sentence wasn't on the books at the
time of his crime. That's not double jeopardy because he was
sentenced by "different sovereigns" --the state and federal
governments. And his case isn't an anomaly; Justice has a name
for the new policy. "We call it Project Trigger-Lock," says
Justice spokesman Doug Tillett. "The intent is to get bad guys
off the street with apologies to none."
Above all, though, the Reagan and Bush administrations have
succeeded in bribing local police to siphon citizens into
federal prisons. They did so by slashing general assistance to
local police with one hand and offering big drug-enforcement
grants with the other. Then in 1986, the Justice Department
started offering local police a cut of the cash, houses, cars,
airplanes and other assets confiscated in joint operations with
federal drug agents --cases that almost always go to federal
instead of state court. Junkie-sick for funds, police responded
with relish; since Justice started sharing the loot, confiscations
have risen seventeenfold, to half a billion dollars a year, of
which state and local cops last year got almost half.
In Missoula County, Montana --a place so far removed from the
"drug problem" that police say they have never seen crack-- two
of the sheriff's eleven detectives and one of the county's five
prosecutors are paid entirely by federal drug-grant money and
assigned full-time to drug cases. Between grants and confiscated
assets, the county's chief of detectives told the weekly
_Missoula Independent_, drug enforcement is "just about the only
type of law enforcement where you get a return on your dollar."
Welcome to free-market criminal justice. With police dependent
on the drug economy, it's hard to see their incentive for
stamping it out.
As drug cases flood the federal courts, the punishments meted
out there continue to escalate. Federal judges no longer have
much discretion in sentencing; even the most small-potatoes
marijuana crime --possession without intent to sell-- carries a
mandatory minimum. And if prosecutors don't like the sentence,
they can appeal, a right that until 1984 was enjoyed exclusively
by defendants. There's no federal parole anymore, either, so
once you're convicted you're on the federal express; the
mandatory machine kicks in and that's the last you until your
sentence is served.
It's gotten to where defense attorneys in federal drug cases can
do their clients about as much good as Dr. Kevorkian can do his 
--quietly shepherd them through to the least painful end. The
government gets all the time it wants to prepare its case; a
defendant now gets only seventy days. The government can further
cripple the defense by confiscating in advance any money the
accused would use to pay a lawyer. "It's terrifying," says one
Montana defense lawyer. "I've actually thought about resigning
from the bar because there is less and less I can do for my
clients." Just say nolo contendre.
The Supreme Court, meanwhile, is steadily eroding the protections
against police excess promised by the Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution. The Court
during the past decade let police obtain search warrants on the
strength of anonymous tips (Fourth and Sixth Amendments). It did
away with the need for warrants when the police want to search
luggage, trash cans, car interiors, bus passangers, fenced
private property and barns (Fourth). It let prosecutors hold
drug offenders without bail (Eighth). It permitted the
confiscation of property befor a suspect is charges, let alone
convicted (Fifth). It let prosecutors imprison people twice --at
the state and federal levels-- for the same crime (Fifth). It
let police fly as low as 400 feet over houses in their search
for marijuana plants (Fourth). It allowed the seizure of defense
attorneys' legal fees in drug cases (Sixth). It allowed
mandatory urine testing for federal employees (Fourth). And in a
Michigan case last year, it let stand a sentece of mandatory
life without parole for simple drug possession (Eighth).
None of these decisions rated more than a fleeting blip on the
political radar. "What we have here is a classic conflict
between civil liberties and effective law enforcement," a U.S.
Attorney in Montana blithely told me during an interview. "And
the will of the people right now, at least as expressed through
their elected representatives, is for effective drug enforcement."
A Louisiana defense attorney put it another way: "Our rights
aren't being taken away," he said, "they're being given away."
This for a "war" that, like most others, brings no clear result
but violence and misery, even to the people in whose name it is
There hasn't been much critcism of the War on Drugs so far
because even as we celebrate the 200th anniversary of the Bill
of Rights, any such criticism is essentially forbidden speech.
Thomas Kline of Post Falls, Idaho, got a swift lesson in the
dangers of speaking out when he wrote a letter to the editor of
the _Couer d'Alene Press_ last October advocating the
legalization of marijuana. A couple of days later, agents of the
Idaho Department of Law Enforcement (IDLE) searched the garbage
can behind his house --which is legal without a warrant-- and
found three grams of pot stems. On the strength of that
evidence, they got a warrant, found seventeen joints in Kline's
house and busted him. "We'd do the same thing again," said Wayne
Longo, the IDLE agent in charge of the investigation, reached by
telephone at his desk in Couer d'Alene. "It's not that often
that we see people writing in saying they're using dope." Of
course, Kline's letter says nothing about his using marijuana;
its strictly an argument for legalization. Longo, however,
wasn't interested in quibling. "Look," he said, "I've commented
on this all I'm going to." And he hung up.