The War on Drugs: A Failed Policy and a Threat to Our Constitutional Rights

By Kent Willis, Executive Director, ACLU of Virginia

For the past dozen years, Virginia’s legislators have aggressively promoted the passing of laws aimed at curbing illegal drug use. Scores of bills have been introduced that either create new laws for punishing drug users and providers, or enhance penalties for violating existing laws. In doing this, Virginia’s public officials are following a national, politically popular trend led by the federal government’s War on Drugs.

After extensive study, the ACLU has concluded that the War on Drugs has not only failed to reduce illegal drug use, but may be the single policy most responsible the rapid erosion of our due process and privacy rights in recent years. It has also become another significant vehicle for perpetuating race discrimination in the United States.

For these reasons the ACLU of Virginia this year urged legislators to oppose all the bills before the Virginia General Assembly that enhanced existing penalties for illegal drug activities or created new ones. The statement below, which was distributed to legislators and other government officials during the 2000 General Assembly session and sent to most Virginia newspapers, describes in more detail the ACLU’s concerns about the War on Drugs, both nationally and as it applies to Virginia.


The War on Drugs: A Failed Policy and a Threat to Our Constitutional Rights

After decades of criminal prohibition and intensive law enforcement efforts to rid the country of illegal drugs, violent traffickers still endanger life in our cities, a steady stream of drug offenders still pours into our jails and prisons, and tons of cocaine, heroin and marijuana still cross our borders unimpeded. Criminal prohibition, the centerpiece of the nation’s drug policy for more than 75 years, has not only failed to deal effectively with the drug problem, but has also subjected otherwise law-abiding individuals to arrest, prosecution and imprisonment for what they do in private.

Since the early 1980s, the government’s escalating War on Drugs has led to massive and continuing civil liberties violations. These include the warrantless drug testing of workers and students, the civil forfeiture of people’s homes, cars and assets, racially discriminatory drug courier profiles and unconstitutional searches of people’s homes. The War on Drugs violates the fundamental rights of privacy and personal autonomy that are guaranteed by our Constitution and perpetuates the racism already deeply imbedded in our society.

Between 1914, when the Harrison Act made drugs illegal, and 1970, 55 federal laws and hundreds of state laws were passed making the possession and the sale of drugs for personal use a crime. Criminalization has not made drugs less available. For example, a federal study showed that in 1975, 87 percent of young people said marijuana was “very easy” or “fairly easy” to obtain. In 1998 – after millions of arrests and an exponential increase in prison sentences – the figure was 89.6 percent.

Not only has criminalization failed to make drugs less available, it has made them available only under the most dangerous and violent circumstances. A look back at drug-related crimes before criminalization indicates that there was practically none. That is because there was no need for a black market and the violence that is associated with it. The Prohibition era serves as a good example of what criminalization can do. The Eighteenth Amendment was repealed not so much because Americans wanted to drink again–they were doing that anyway– but because the black market it created for alcohol products had ushered in the most violent era in American history.

Criminalization has led to other problems not caused by the drugs themselves. It has significantly eroded the Fourth Amendment, creating what Justice Thurgood Marshall once called “a drug exception to the Constitution.” It has also led to an unprecedented explosion of racially skewed incarceration. Despite the fact that most drug users are white, most of those arrested and imprisoned are people of color. The racial disproportion in who gets arrested, who gets prosecuted and who gets convicted is alarming. There is an enormous disparity between the sentences for crack cocaine and powder cocaine, despite the fact that there is no pharmacological difference in the effect it has on the body. Most users of powder cocaine are white, while many who used crack cocaine during its heyday were black.

The racial disparity in sentencing cocaine users has contributed to the over-representation of African-Americans in prison. One out of every three African-American men between the ages of 20 and 29 is now under the jurisdiction of the criminal justice system in this country. Which has led to another problem. Fourteen percent of all African-American males in this country are now disenfranchised as a result of felonies, many of which are heavily due to drug possession convictions. In Virginia alone, 25% of African-American men have lost the right to vote. The war on drugs has become a system of separating out, subjugating, imprisoning, and destroying substantial portions of a population based on skin color.

The War on Drugs affects more than just drug users. It has contributed to the spread of AIDS, a genuine public health disaster, because of prohibition on the availability and distribution of clean needles. It has swept away the right not to have your property taken without due process of law, through the extensive use of civil asset forfeiture. It has established a pretext for racial profiling on our highways, in our airports, at our customs checkpoints and on our streets that are based not on evidence of misconduct but on skin color.

Mandatory sentencing guidelines, which have become a mainstay of the War on Drugs, eliminate any discretion a judge might have in sentencing an individual for many drug offenses. According to the Federal Bureau of Statistics, the average sentence for a first time federal drug offense is 82.4 months – almost a third longer than for sexual abuse, more than twice as long as for assault, and four times longer than for manslaughter. Under mandatory minimum sentencing guidelines, non-violent drug offenders clog the courtrooms and the prisons originally designed for violent criminals. Studies have shown that incarceration does little to curb drug use once the offender has been released. Because of the technical process of classifying offenders, non-violent drug offenders are frequently housed with violent inmates, and can be expected to be more violent upon release.

Along with the ACLU, mandatory sentencing guidelines are opposed by the American Bar Association, the Federal Courts Study Committee and the American Psychological Association.

One often overlooked result of the war on drugs is the effect it has had on families and children. In Virginia alone, there are approximately 15,000 children with parents incarcerated for non-violent crimes. The effects on both children and parents cannot be overlooked. Most incarcerated parents lose touch with their children because of geographical barriers, ill-equipped prison visiting rooms, and family members reluctant to escort young children. Many parents, once they have been released from prison for non-violent drug offenses, find themselves ostracized and unable to secure employment because of a prison record. They then fall into the welfare system.

The ACLU of Virginia urges Virginia’s legislators to initiate a serious and extensive study of drugs, their benefits and their harm, and the proper role of government in mediating such harms as may exist. We believe such an inquiry, fairly conducted, will lead to the conclusion that aggressive criminalization policies are a mistake, and that both freedom and safety require the abandonment of criminal prohibition and the development of a differentiated and appropriate regulatory system to control the availability of drugs.

Share on FacebookTweet about this on TwitterShare on Google+Email this to someone