Drug Rehab Not A Big Enough Part Of The War On Drugs

Thirty-five-thousand NATO troops and the international “war on drugs” have done nothing to reduce Afghanistan’s massively successful opium industry. In fact it’s achieved just the opposite heroin is flooding our streets and in some countries it’s cheaper than ever. The U.N. Office on Drugs and Crime (UNODC) reports that Afghan opium production in 2006 was a whopping 57 percent above 2005, and it’s expected to rise another 15 percent this year.

Afghanistan now accounts for 93 percent of the world’s poppy crop – the source of heroin, morphine and other addictive opiates. If a decent portion of the hundreds of billions of dollars spent on the last 30 years’ war on drugs had been used instead to radically expand anti-drug education and successful drug rehab programs, the world would be a far better place.

It has been 36 years since President Richard M. Nixon launched the war on drugs, and the overall result is apparently more criminals making more money than ever – some estimates placing the illicit drug trade at $400 billion to $500 billion annually. But critics of the methods employed in the war on drugs contend that interrupting drug shipments at home or abroad, called “drug interdiction” by the cops, actually expands the drug trade by reducing the supply, thereby raising prices and profits and attracting more traffickers than ever. And more addicts are created too, adding to that most tragic segment of society who, without drug rehab treatment, have no place to go but down.

In Drug War Politics, the authors explain why drug interdiction does not disrupt the drug industry, but instead results in “a guaranteed market, with profits kept artificially high by the U.S. government.” The drug market succeeds because it has the ability to self-reproduce: every time a government attempts to eliminate drug production or smuggling, the traffickers “tap alternative sources of supply.” So even when the US government is successful against one drug cartel, a different group of traffickers open new smuggling routes and gain even more market share. This analysis from over 10 years ago is still true today after a decade of a war on drugs that has left drug education and drug rehab on the short side of support.

But let’s remember that it’s a market, and all markets are based on supply and demand. Spending more of the huge budget for the war on drugs on education and drug rehab would certainly reduce the demand for drugs – and that’s the real source of the drug problem. Someone realized this when the National Drug Control Strategy was issued by the White House several years ago. The Strategy’s three major components are: Stopping Drug Use Before It Starts, Healing America’s Drug Users, and Disrupting Drug Markets. These headings are obviously aimed at education and treatment as well as interdiction. We hear about interdiction endlessly in the news, in television dramas and in movies. So why don’t we ever hear about the other two? Federal funds allocated for drug abuse education and drug rehab cannot compare to what’s spent on law enforcement. Yet some experts say the methods used by law enforcement apparently make things worse.

By really beefing up education programs about the consequences of drug use, Stopping Drug Use Before It Starts would have more effect. And by implementing more drug testing in the workplace and providing plenty of treatment centers with plenty of options for drug users, Healing America’s Drug Users would actually make the difference we need. America’s drug abusers and addicts are in the worst predicament possible. They will only be helped through a vastly expanded, improved and available-to-all network of centers that offers a successful drug rehab program.

Drug Crimes and Their Effects

Drug crimes are a significant focus for law enforcement and the criminal justice system. Drug crimes can be very detrimental to society, even those who believe these crimes do not affect them, through death and injuries, health care costs for issues related to drug use and drug treatment, and ramifications of criminal drug acts.

There are a number of local, state, and federal laws regarding these crimes. Almost every law somehow prohibits the manufacturing, possession, or selling of illegal substances such as cocaine, methamphetamine, heroin, and marijuana. Other types of illegal drugs include prescription medications such as painkillers or anti-anxiety medicines that are used by anyone other than the original patient.

Manufacturing drugs refers to actually cultivating or creating illegal substances, such as those who grow marijuana plants or cook methamphetamine through a chemical process in their homes. The most common type of drug charge is for possession of drugs, meaning that the defendant knowingly possessed a controlled substance, without a valid prescription, and intended to use the drug for personal use or for selling. In addition to having the drugs on their person, the defendant can be charged for possession if the drugs are in their home, car, or other place where they have access, such as a work or school locker. Having drug paraphernalia such as a crack pipe and heroin syringe can sometimes be serious enough to warrant a drug possession charge.

Distribution of drugs means that the defendant intended to sell illegal substances. Trafficking is a more serious version of distribution because it usually involves a large amount of drugs that will cross state lines or be imported from another country. The charges for distribution and trafficking will depend upon the type and amount of drugs, the criminal record of the defendant, and sometimes where the drugs are distributed. Distributing drugs close to a school or park can carry higher penalties.

Federal laws tend to be stricter than local or state laws regarding drug crimes. Local charges are usually for possession and carry fines, probation, or a small amount of jail time. Federal charges are usually for distribution or trafficking and the charges often include prison time.

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.


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.