Alexander's Column


Mark Alexander · Apr. 27, 2001

“If the zeal to eliminate drugs leads this state and nation to forsake its ancient heritage of constitutional liberty, then we will have suffered a far greater injury than drugs ever inflict upon us. Drugs injure some of us. The loss of liberty injures us all.” –Chief Justice of the Florida Supreme Court

Events this week have brought the “war on drugs” to the forefront of national attention. The Bush administration appears poised to name John Walters director of the Office of National Drug Control Policy. Walters is reportedly a “hard-liner” who favors stringent enforcement of drug laws and long prison sentences for drug users.

Last Friday, missionary Veronica Bowers and her 7-month-old daughter were killed in Peru when their aircraft was mistaken for a drug trafficker’s plane and shot down. The deaths of these two innocents are heartrending, raising hard questions about the cost-benefit calculations for the drug war.

Just what are the real costs of the war on drugs, in terms of social divisions, criminal gang facilitation, criminal justice system costs, costs of increased public and private security, military interventions, and costs to families caught up in the drug war?

The Drug Enforcement Administration (DEA) reports arrests of 40,383 offenders in 1999. The central government spends about $18 billion a year in the drug war. Americans spent approximately $66 billion on illegal drugs in 1998 – the price of those drugs inflated by their illegality. Drug users committed millions of crimes to fund their drug habit. The Wall Street Journal reports: “The federal prison population in the U.S. is expected to soar by 31.8% by the 2006 budget year, driven by mandatory drug sentences, even as the state prison population levels off.” The Department of Justice notes that in 1998, drugs directly claimed the lives of 15,973 children. And the number of drug gang involved young people killed, together with their innocent victims, is perhaps equal to that figure. U.S. Customs estimates that only 5 percent of the illegal drugs entering the United States are intercepted.

(A footnote: If drug/gang-related murders committed with guns were removed from our national mortality statistics, the Left’s trademark “gun problem” argument would lose its “statistical credibility” as the number of deaths drops below even those in some European nations that have outlawed handguns entirely.)

Current drug laws follow the Prohibition model, an experiment that failed miserably with alcohol in the 1920s, after enactment of the 18th Amendment in 1919. That misguided endeavor was repealed by the 21st Amendment, ratified in late 1933, leaving the Constitution silent on matters of drug use. (In fact, the Constitution lists only three federal crimes: treason against the United States, piracy on the high seas, and counterfeiting.)

Nevertheless, principles to guide lawmaking on the subject may be derived from general powers assigned constitutionally to the Congress, to the several states and to the people of the United States. The Constitution’s Article I, Section 8, assigns Congress the “power to … regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” and “to define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations; to …make rules concerning captures on the land and water….” These assigned powers place Congress fully within its constitutional perimeters in making laws restricting importation of drugs across U.S. borders and across state boundaries within our nation. And defining international drug trafficking as illegal is clearly within Congress’s proper constitutional purview.

All other aspects of lawfulness of citizen drug use are left to the state and local levels of government: This is assured by the 9th Amendment’s guarantee that rights not enumerated in the Constitution are retained by the people, taken together with the 10th Amendment’s statement on federalism.

However, the DEA, with its existing activities, is incompatible with this model of federally distributed drug policing powers. The DEA’s current structure dates to 1973, as the organization serves to enforce the Controlled Substances Act passed by Congress in 1970. And the DEA targets citizens who never themselves cross state or national borders, or deal directly with others who do. Drug enforcement officers, most of whom are competent and professional, are thus tasked with prosecuting the drug war in a manner absolutely doomed to failure – because fundamentally mismatched with our constitutional system of government.

While the deaths of Veronica Bowers and her infant daughter have received international attention, there is little coverage of the people wrongly killed in our own country during drug raids. Criminal justice professor Peter Kraska, of Eastern Kentucky University, has found that police deployment of paramilitary squads has increased over 900% since 1980, and that local law enforcement agencies often rely on federally affiliated military-style commando units to execute drug warrants. Kraska has noted that over the last five years, more than 230 episodes have resulted in death or serious injury from drug enforcement actions involving SWAT team raids on private homes – often at wrong addresses or with unnecessary use of paramilitary forces.

Illustrative of these domestic drug enforcement tragedies is the death of 11-year-old Alberto Sepulveda on September 13th in Modesto, California. After a 19-month federal drug investigation, combined raiders from the DEA, the FBI and the Stanislaus County Drug Enforcement Agency burst into the home Moises Sepulveda shared with his wife and two sons. Alberto quickly complied with orders to lie face down on the bedroom floor. Within seconds, a SWAT officer’s shotgun discharged into Alberto’s back, killing him. “[I]f the SWAT team is there, tragic accidents like this are much more likely to happen. Is it worth putting an entire family at risk, for what is sometimes a small amount of drugs, or small-time dealers?” asked criminologist Kraska. (No drugs or weapons were discovered in the Sepulveda home, and only $3,000 in cash.)

Among similar controversial incidents: In September 1999, SWAT team members fatally shot Denver resident Ismael Mena, 45, while forcing their way into the wrong house. In Southern California in a 1999 nighttime raid, Compton resident Mario Paz was shot in the back by SWAT officers from nearby El Monte. Police later admitted they had no evidence that the Paz family was involved in trafficking; they merely had information the home had been used by a drug suspect.

And in Lebanon, Tennessee, five “intruders” broke through the front door of the home of Mr. John Adams, 64, and his wife – in the middle of the night. Mr. Adams did what most Americans would do under similar circumstances – he attempted to defend his wife with a weapon he had at hand, a shotgun. The intruders returned volley, shooting Mr. Adams multiple times. He died shortly thereafter. That was the third incident in a span of mere weeks, in which paramilitary police teams executed narcotics search warrants at the wrong locations – with fatal consequences. In this case, the search warrant was for the house next door.

This latest victim’s name – John Adams – is supremely ironic. Our Constitution’s 4th Amendment established: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Several drug-related measures before Congress contrarily authorize warrant-free searches (for instance, S. 2516, “The Fugitive Apprehension Act”).

As Rep. Ron Paul aptly summed up, “Despite the various pleas for federal correction of societal wrongs [including drug use and abuse], a national police force is neither prudent nor constitutional. The argument is that states are less effective than a centralized federal government in dealing with individuals who flee one state for another to avoid prosecution. The Constitution preserves the integrity of states, and provides the means for them to exact penalties from those who violate their laws, and the Constitution provides for the return of fugitives from one state to another. There is, of course, an inconvenience imposed upon states in working with one another, rather than relying on a national police force. But there is a greater cost to individual liberty from a centralized police power.”

Upon review of the “total cost” of drug prohibition, and the constitutionality of this futile exercise, The Federalist takes the position that the current “war on drugs” presents a far greater risk to liberty than the use of drugs ever has or ever will. We favor restoration of federally separated and distributed drug laws and policing authorities, with nuanced, rational dispensing of proportionate justice that distinguishes addicts or abusers who harm only themselves from those whose drug profiteering injures or endangers others. As columnist Deroy Murdock observed: “The alternative is to continue a War on Drugs that has torched $146 billion since 1990 while rolling and smoking the Bill of Rights.”

It's Right. It's Free.