A Substantive Due Process Challenge to the War on Drugs

Substantive Due Process Analysis of the Incarceration of Drug Offenders

A. Framework

In Washington v. Glucksberg, Chief Justice Rehnquist described the framework for substantive due process analysis:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

Applying this method, one must first examine freedom from incarceration to determine if it is a fundamental right. If so, government policies that require the incarceration of offenders, including drug offenders, must serve compelling interests and be narrowly tailored to achieve them. This article assumes for the sake of argument that drug problems give rise to compelling state interests. It then reviews the interests asserted by the government in its pursuit of its drug war policies and the results of those policies to determine whether the policy of incarcerating drug offenders is narrowly tailored to those asserted interests.

B. The Fundamental Liberty Interest: Freedom from Incarceration

Federal and state laws subject drug offenders to incarceration. Incarceration is a tremendous deprivation of liberty that triggers the protections of the Due Process Clause. The Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for example, the court held:
[I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf–through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause . . . .

Perhaps the earliest explicit recognition by the Supreme Court of freedom from incarceration as a fundamental right under substantive due process came in Allgeyer:

The ‘liberty’ mentioned in [the fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

An 1891 law review article noted that Blackstone described “freedom from restraint of the person” as “perhaps the most important of all civil rights,” and that Lord Coke felt “the liberty of a man’s person is more precious to him than everything else that is mentioned [in the Magna Charta].” Blackstone states that “the rights of all mankind . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.” Indeed, the original Latin in the Magna Charta’s “law of the land” clause uses the term “imprisonetur.”

No court has invalidated a criminal statute through the application of substantive due process analysis to the fundamental right of freedom from incarceration. At the same time, no court has ruled to the contrary. The Supreme Court avoided the question in Reno v. Flores:

The “freedom from physical restraint” invoked by respondents is not at issue in this case. Surely not in the sense of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the sense of a right to come and go at will, since, as we have said elsewhere, “juveniles, unlike adults, are always in some form of custody,” and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.

This analysis would not apply to adult drug offenders. The Fourth Circuit also avoided addressing freedom from incarceration as a fundamental right in Hawkins v. Freeman:

Hawkins’s rhetorical reference to the right as being “freedom from unjust incarceration,” and that of amicus, American Civil Liberties Union of North Carolina, as the “right to be free from arbitrary incarceration,” are issue-begging generalizations that cannot serve the inquiry. A properly precise description can, however, be found in the facts and legal authorities relied upon by Hawkins in support of his claim. From these, we deduce that the precise right asserted is that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from incarceration have “crystallized.”

Hawkins is distinguishable because it deals with an inmate whose parole was revoked. In any event, the casual dismissal as an “issue-begging generalization” flies in the face of nearly 800 years of common law tradition and over a century of Supreme Court decisions recognizing freedom from incarceration as a fundamental right. Indeed the language of the Supreme Court’s Ingraham decision supports the application of substantive due process proposed in this paper:

While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

The Court also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving the confinement of a person found not guilty by reason of insanity:

Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty.

While the Foucha Court indicated that “a State may imprison convicted criminals for the purposes of deterrence and retribution,” the remark was dicta and did not involve any discussion of substantive limits on the police power. In Meachum v. Fano the Court made a similar remark in the context of a case dealing with prison conditions: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.” Again there was no discussion of substantive limits on the police power. Indeed the previous sentence noted: “The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause.”

Recently in Zadvydas v. Davis, the Court noted:

The Fifth Amendment’s Due Process Clause forbids the Government to “depriv[e]” any “person … of … liberty … without due process of law.” Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty that Clause protects.

Freedom from incarceration is not just a fundamental right. It is the one of the most fundamental of rights.

C. Identifying the State’s Interests

Governmental drug policy interests identified in federal statutes include “demand reduction,” “supply reduction,” and “reducing drug abuse and the consequences of drug abuse in the United States, by limiting the availability of and reducing the demand for illegal drugs.”

Federal law sets specific goals for the National Drug Control Strategy. These include:

“Reduction of unlawful drug use to 3 percent of the population”;

“Reduction of adolescent unlawful drug use to 3 percent of the adolescent population”;

“Reduction of the availability of cocaine, heroin, marijuana, and methamphetamine”;
“Reduction of the respective nationwide average street purity levels for cocaine, heroin, marijuana, and methamphetamine”; and

“Reduction of drug-related crime.”
Goals are also set forth with regard to drug-related crime:
(i) reduction of State and Federal unlawful drug trafficking and distribution; (ii) reduction of State and Federal crimes committed by persons under the influence of unlawful drugs; (iii) reduction of State and Federal crimes committed for the purpose of obtaining unlawful drugs or obtaining property that is intended to be used for the purchase of unlawful drugs; and (iv) reduction of drug-related emergency room incidents . . . .

D. Defining “Narrow Tailoring” in the Context of Substantive Due Process

Assuming that the governmental interests are compelling, we must determine whether the incarceration of drug offenders is narrowly tailored to achieving them. The government must show that its policy passes strict scrutiny. The concept of narrow tailoring is not well defined in the context of substantive due process, but has been fairly well defined in regard to the First Amendment and Equal Protection. Equal Protection cases also arise out of the Fourteenth Amendment. In Wygant v. Jackson Bd. of Education the Supreme Court held: “Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” In a footnote, the Court described narrow tailoring in even further detail:
The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. Or, as Professor Ely has noted, the classification at issue must “fit” with greater precision than any alternative means. “[Courts] should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense.”

It is important to note here that a policy that does not advance the government’s interests violates substantive due process regardless of how it compares with the alternatives. If it does not accomplish its purpose, logic dictates it cannot be specifically and narrowly framed to accomplish its purpose.

E. Advancing Governmental Interests

Congress has identified certain tools for assessing the national drug control strategy. The National Household Survey is the measure for “unlawful drug use.” Similarly, “adolescent unlawful drug use” is to be measured “by the Monitoring the Future Survey of the University of Michigan or the National PRIDE Survey conducted by the National Parents’ Resource Institute for Drug Education.” On these measures, the goals are not being reached.

The measure of adolescent drug use that was specifically identified by Congress, illicit drug use in the past 30 days, worsened in 2001. More than 25% of US twelfth graders reported using illicit drugs in the past 30 days. That is nearly double the figure for 1992 and more than eight times the stated goal of 3%. Over 40% of 12th graders tried an illicit drug in the past year.

The PRIDE Survey and National Household Survey show similar results.

The drug war has also failed in its other goals. The Monitoring the Future Survey tracks how twelfth graders perceive the availability of drugs. Reducing availability is an explicit goal of the drug war. The perceived availability of marijuana in 2001 was slightly higher than in 1975. The figures for harder drugs are more disturbing. From 1975 to 1986, roughly 20% of twelfth graders said heroin was easy to get. That number shot up in the late 1980s and has remained consistently higher than 30%. Cocaine remains widely available to our youth, with nearly 50% of twelfth graders saying it is easy to get. The survey began measuring the availability of ecstasy in 1989, when only 22% of twelfth graders felt it was easy to get. In 2001, that number went over 61%, having jumped from 51% the year before.

Drug war policies are not achieving the stated drug war goals. They cannot be “specifically and narrowly framed to accomplish their purpose” because they are not accomplishing their purpose. Drug use has not been reduced in any significant way, and levels of drug use are far above the stated goals. Our children have easy access to drugs. We can’t even keep drugs out of jails. The drug war and the incarceration of drug offenders have also failed to achieve secondary goals regarding supply, demand, purity, drug-related health problems and drug-related crime. The policy of incarcerating drug offenders does not “directly advance[] the governmental interest asserted.” The War on Drugs is not working.

F. Alternative Means

Even if a court is persuaded that incarceration advances the government’s interests, the government must also show that its policy choice fits better than the alternatives. Critics of the drug war encompass a broad spectrum of backgrounds, and the range of “solutions” is just as wide. Libertarians and others favor outright legalization of drugs. The legalization of marijuana is a somewhat popular variation of overall legalization, and there are other variations such as the legalization of marijuana for medical purposes and decriminalization of drugs or marijuana. Another leading approach, known as harm reduction, looks at drugs from a public health perspective.

The effectiveness of some of these alternatives is difficult to assess. Even so, certain comparisons can be made. Advocates of treatment point to studies showing that treatment is much more effective than incarceration. Spencer notes:
The recidivism rate for first time Dade County drug offenders was sixty percent, but for those who successfully completed the Dade County Drug Court treatment programs, the recidivism rate reported by Dade County officials was only seven percent. Drug court treatment programs are also cost effective. It costs Florida only $2,000 to put a drug offender through a drug court program, as compared to $17,000 per drug offender for incarceration. As a result, other drug court programs are being established throughout the country.

Similarly, a Rand study found treatment to be seven times more cost-effective than current supply-control policy in reducing cocaine consumption.

G. The Incarceration of Drug Offenders is Not Narrowly Tailored

Incarceration involves a far greater infringement of fundamental rights than alternatives which are both more effective and less intrusive. The incarceration of offenders is not advancing the state’s asserted interests. The drug war is not narrowly tailored, failing the Supreme Court’s “established method of substantive-due-process analysis” as described by Chief Justice Rehnquist. The laws requiring the incarceration of drug offenders are therefore unconstitutional, if substantive due process analysis is applied.

IV. CONCLUSION

It is true that the approach suggested in this paper would limit the police power. Constitutional protection of individual rights exists for that very purpose. We face coercive government action, carried out in a corrupt and racist manner, with military and paramilitary assaults on our homes, leading to mass incarceration and innocent deaths. We can never forget the tyranny of a government unrestrained by an independent judiciary. Our courts must end the War on Drugs.

For the full article, with endnotes, see: http://www.redlichlaw.com/crim/substantive-due-process-drug-war.pdf

Sexual Assault and How the Laws Protect You

Each state has its own laws regarding sexual assault so there can be some differences from state to state. Definitions may vary from groping to sexual assault and battery or attempted rape. No matter which state it is, however, this crime involves unwanted and offensive touching of a sexual nature and is considered criminal behavior in every state.

Even though the wording each state uses in its laws may differ from that of other states and the exact definition may not be the same, there are shared elements in the laws. Due to those things that are different, it is best to check how the local laws are worded to find the answers to any questions about what is considered sexual assault.

Proving Charges

Typically, this crime is one in which a person forces sexual contact with a victim. The victim often is faced with threats of violence or rendered defenseless in some manner. Some people are not able to understand what is being done to them due to mental disabilities. In these cases, even if the victim seemed willing, they are usually considered a victim of criminal sexual assault. Those who are physically disabled are usually unable to defend themselves or offer any resistance are also considered victims.

Any time a person is not able to say no to sexual contact, that person can be considered a victim. Date rape drugs, recreational drugs and alcohol can render a person unable to make decisions in a rational manner. Because of this, being under their influence makes a person unable to give legal consent to any sexual activity with someone else.

Now days, the laws regarding sexual contact of an unwanted nature are worded so they cover unconsented sexual contact regardless of gender or age. Because of this, nonconsensual sexual contact can involve two children or any combination of adults and is not restricted to such contact being between adults of opposite genders or adults and children.

The term sexual assault is used in some states to refer to a number of different sex related crimes. It may refer to unwanted contact of a sexual nature of any kind, including rape. Some states may be more definitive in assigning severity levels of the crime. One example is forced sexual touching, such as groping, may be considered a misdemeanor while it takes sexual penetration to be considered first degree felony sexual assault. Forms of unwanted sexual conduct falling between the two will have degrees of seriousness assigned based on where they fit in the progression of activity.

Federal Law

Spousal sexual assault is also covered by laws in most states. States use one or more of these three ways of addressing this.

  • Eliminating exemptions in place in current laws covering spousal assault.
  • Eliminating marriage as a defense against spousal sexual assault.
  • Make it a standalone crime on its own.

While laws exist in each state with some variations, laws also exist on the federal level. They are much the same as those shown above. Federal law forbids any sexual contact that is forced on a person or performed on an incapacitated individual. It is the responsibility of everyone to know the laws governing sexual assault and know that failure to abide by them can result in being charged with a crime.

Law Is a Subliminal Advertisement Encouraging Law Breaking – Rule-Of-Law Is a Crime Against Humanity

As strictly a means of punishing offenders and threatening reprisals to apply deterrence to an action, the rule-of-law functions adequately. (But it still prone to many errors and wealthy people can manipulate the process). However, if you suppose that law really protects you and your family from violence and harm, I suggest you ‘think again’. In fact, the law itself is a reason why many crimes are perpetrated and the law against an action is subliminally interpreted as a target painted on your back compelling a malcontent to commit that crime against you.

Do you really understand how the human subconscious works? It’s obvious to me that even supposedly well-educated psychologists don’t have a clue what they are dealing with in the human subconscious mind. For one thing, we are all different in our conscious minds, so why wouldn’t our subconscious also have uniqueness? We all also know that our subconscious minds often have very different ideas of what they want, than our conscious minds do.

So how does the subconscious mind view the rule-of-law? Well, where I live, a new law against distracted driving is about to come into effect. The radio commercials have a booming voice saying ‘Distracted driving is AGAINST the LAW!’ A conscious mind hears that statement and it probably interprets it as meaning – ‘I had better not text whilst driving or I’ll get hit with a stiff fine’. The sciences of psychology and hypnotism agree that the subconscious mind thinks literally: so the message it might get is – ‘By driving while distracted I can make a loud anti-political statement because I’m breaking a government edict’. There is a big difference there. The conscious mind might refrain from the action but the subconscious mind is encouraged to do the forbidden deed.

I’ll support that last paragraph with a couple snippets of factual information. Firstly, younger people are more closely in synch with their subconscious minds. And of all reasons given for the question of ‘why did you try illegal drugs for the first time?, the answer most given is ‘because it was against the law’. In other words, a law against using an illegal substance was the primary motivation for misuse of the drug.

Driving while distracted does cause many accidents and we as a society do need to have a method of curbing the action. The law against it will have some deterrence value that will make some people think twice before driving while distracted. But in other cases a person’s subconscious mind will encourage them to drive while they are preoccupied with something else because it is against the law. So will there be an actual net beneficial effect from the existence of the distracted driving law? (Other than the government being absolutely thrilled by the sudden influx of the new money in fine revenue.)

I’ll finish this article by saying that while I used a distracted driving law as an example, it is certainly not the only application where a law itself is partially or completely causing the commission of the crime. Real people are being raped, robbed, assaulted and murdered and the mere fact that these actions are deemed by the subconscious mind as being an anti-authority statement is providing a powerful extra motivation in favor of the crime’s commission.

That is a crime-against-humanity that the rule-of-law itself is guilty of. We as people really need to rethink how we want to perform public justice and societal protection.

Drug Crime Defense – Standing Trial On Charges

When you’re arrested and charged by the prosecution, you have two basic choices. You can plead guilty and take what the judge decides should be your punishment or you can exercise your constitutional right to have a trial and be judged by a jury of your peers. Neither of these decisions should be made without the assistance and advice of a skilled lawyer. Should you get together with one and decide that you mean to push forward with a trial, you will need a good drug crime defense to stand up against the prosecution. Whether you mean to minimize your own involvement, contend that the police have it wrong, or argue that your rights have been trampled, you are due your day in court.

Protecting Your Rights

Many people assume that the only reason to hire a lawyer is to try to “get off” for the criminal activity you’ve been charged with. In fact, this is not the case. Many people hire a criminal attorney simply to make sure their rights are protected and that they are aware at all times what options they have. Some hire one to help them secure a plea bargain. The fact is that you can’t count on the police and prosecutors to protect your rights for you. Their job is to secure a conviction, not to babysit their defendants. While we trust that the state will stay on the fair side of the law when attempting to put away criminals, we’ve seen again and again that we can’t take it for granted. Neither can you.

Investigation

You don’t have the means to conduct a thorough investigation from behind bars. Even if you are free on bail, you don’t have the resources or the knowledge to let you conduct such an investigation and build a drug crime defense that will make an impact in court. A good lawyer will have all of these things. And these things are necessary if you hope to fight back against the charges being levied against you. This is also why you should hire a lawyer as soon as possible. The sooner he or she can begin looking over the case, interviewing witnesses, and collecting evidence, the better your case will be.

Free Consultations

Often, lawyers in the area of drug crime defense are willing to meet with potential clients for a free consultation. Money may be tight right now, and lawyers tend to understand this. While you’re unlikely to get free representation (unless you opt for the public defender), you can get a bit of free advice and the chance to ask some questions. You may just find the man who can properly take your case.

What Happens If You Are Arrested For a Drug Crime in Mississippi?

Being arrested for a crime is never a pleasant situation, but a drug crime arrest in Mississippi can be a particularly harrowing experience. Drugs are a real part of American life in the 21st century, and many people throughout Lee County have found themselves on the wrong side of the law in these cases. Although each drug arrest is a unique event that has its own particular set of circumstances, there are a few universal aspects that can apply across the board.

Perhaps the best way to understand these cases is to understand the charges. Drug crimes in Mississippi is a catchall phrase that actually covers a broad cross section of criminal offenses. Some of the most common include:

  • Simple Possession. This offense is perhaps the simplest drug crime of them all, where someone is charged with having on their person or property an amount of a controlled or illegal substance. The penalties for this Mississippi drug crime varies greatly depending on the type of substance and the amount; for example, possessing 30 grams or less of marijuana is a misdemeanor but possessing less than a gram of cocaine can be a felony.
  • Possession with Intent to Distribute. This is a more serious offense, because it demonstrates forethought to commit a crime, rather than simple mistake on the part of the defendant.
  • Drug Trafficking. Because Mississippi has an extensive network of interstates and connects the east to the southwest, drug trafficking has become a large problem throughout the state. Drug trafficking involves the production, sale, distribution or dispensing of a preset amount of a controlled substance over the course of 12 consecutive months, in at least two different counties in the state.

An arrest for one of these drug offenses can be a life changing experience. Penalties in excess of 30 years or life without parole are not unheard of in Mississippi, and without a full understanding of the laws involved in a drug arrest the large, impersonal wheels of justice can easily crush a confused individual underneath their bulk.