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Ten Ways the War On Drugs Violates the U.S. Constitution

How our government's ongoing policy on drugs threatens all of us in unexpected ways.

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By Clarence Walker

04/10/14

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Even while marijuana legalization has been approved in some states, the War on Drugs remains the biggest and greatest violation and imminent threat to our civil liberties and the preservation of the Bill of Rights under the Constitution. The War on Drugs is an enemy to the rights and privacy of U.S. citizens everywhere. And this war not only targets guilty drug users or traffickers; it is also waged against innocent Americans who may think they are safe from draconian drug war policies.

This belief is a myth, and here's why: even if you don’t use marijuana, cocaine, pop pills or inject heroin—the drug war can still target you as a suspect. It doesn't matter if you're at work, picking up mail, applying for a job or even purchasing cold medicine at drug stores like CVS or Walgreens, the drug war has boldly established a 24-7 disturbing presence in the lives of American citizens.

The drug war is also responsible for the past and present illegal surveillance of people's cars and property and even plays a vital role in collecting information through illegal spying. The government's drug policies have unequivocally undermined basic civil rights and gutted the constitutional amendments. And it's not coincidental that much of the eroding civil rights in the "war on terror" came directly from the war on drugs.

Supreme Court Justice Thurgood Marshall once summed up the drug war by reminding his fellow justices that "there is no drug exception to the Constitution."

The drug war is a war on everyone. So who is the real enemy? Drugs are not the enemy because drugs are chemicals. We have a war on drugs no more than we have a war on fruit trees. Just read the Constitution and there's nothing in it that says our government can pass laws to prohibit citizens from injecting narcotics or smoking marijuana; our brains and bodies don't belong to the government.

In a recent email, Phil Smith, editor of Drug War Chronicle, slammed the drug war this way: "One area of constitutional violations is in the realm of mandatory, suspicionless drug testing. The federal courts have held repeatedly that a drug test is a search under the Fourth Amendment and have generally barred government from requiring such tests, although they carved out a handful of exceptions for public safety-sensitive positions such as law enforcement, and for students engaged in extracurricular activities."

Smith points out the differences in how the Constitution functions against the government and private entities. "The Fourth Amendment protects us from the government, not privatization. That's why private employers can demand a drug test for no reason, but the government cannot demand welfare recipients take a drug test for no reason."

According to drugpolicy.org and Forbes, here are the stats proving the failure and institutionalized racism of the drug war:

• More than $51 billion has been spent annually in the U.S. on the drug war.

• 1.55 million people were arrested in 2012 on non-violent drug charges.

• 749,825 people were arrested that same year for marijuana drug violations. Of those, 658,231 were charged with possession only.

• Over 200,000 students lost federal financial aid eligibility due to a drug conviction.

• Studies show that the amount of tax revenues drug legalization would rake in annually is estimated at $46.7 billion dollars if current illegal drugs were taxed at rates comparable to alcohol and tobacco.

• African Americans represent an alarming 62 percent of all drug offenders sent to U.S. state prisons, yet they only represent 12 percent of the American population.

• Black men are sent to prison on drug charges at a rate that is 13 times that of white men.

• Out of 25.4 million Americans arrested on drug charges since 1980; approximately one-third of them were black

Here are prime examples of how the drug war policies violate the Constitution:

(1) Facts Behind How DEA Designated Marijuana as a Schedule 1 Drug: Long ago the federal government defined marijuana as a schedule 1 drug with no scientific accepted medical use. Apparently the feds intentionally ignored how marijuana is beneficial for people to treat serious ailments like arthritis, diabetes, glaucoma, Crohn's disease, and Parkinson’s disease and marijuana is also used to relieve joint pain as well as relieve nausea that cancer patients feel after undergoing chemotherapy. Further, marijuana has been used to treat depression and other mood disorders.

Plus we must not forget how the DEA and conservative lawmakers have tried to block legislation for states to pass medical marijuana laws. Thousands of chronically ill patients have suffered unnecessarily due to this opposition. In states where medical marijuana is legal the DEA along with city and county law enforcement officers continue to raid marijuana businesses, and arrest patients and legal pot growers.

Warning: Anyone living in a state without medical marijuana laws can be arrested for buying it to treat a medical condition. Under federal law marijuana is illegal even if a particular state legalizes it for medical or recreational purposes.

(2) Millions of Americans are Drug-Tested Each Year: Remember the job you applied for where the hiring requirements included submitting to a drug test? Well approximately 84 percent of U.S employers drug-test current employees including anyone considered for hiring.

So here's the kicker: what if a potential employee confides to a prospective employer that he takes prescribed legal opiates like oxycodone for pain, or a legal amphetamine like Adderall for ADHD, or even medical marijuana? The potential employee has just set himself up for rejection; even though he takes legally prescribed medication, this testing mandate actually gives employers unlimited power to discriminate against millions of workers based on private health decisions.

(3) Drug Testing at High Schools: The U.S. Supreme Court upheld a Vernonia, Oregon public school policy to randomly drug-test students and athletes if school faculty merely suspect a student may be using drugs. A 6-3 majority opinion held that the Fourth Amendment only protects against "unreasonable search and seizures, but when ‘special needs’ outside of ordinary law enforcement makes obtaining a warrant impractical, the school can test students for drugs."

In a dissenting opinion, Justice 'O Connor said the policy “was too broad and too imprecise to be constitutional under the Fourth Amendment.”

(4) Violation of Free Speech Under the First Amendment: Senators Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif) co-authored the Methamphetamine Anti-Proliferation Act, a law designed to prohibit certain speech advocating drug use or production. This law further prohibited websites or blogs that sold drug paraphernalia or pages linked to similar sites, which violates the First Amendment that in part, says: "Congress shall make no law prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press!”

(5) Unemployed Workers Receiving Benefits: Have you ever been fired or laid off from your job because your employer suspected drug use and you desperately needed unemployment benefits to help make ends meet? Well hopefully you don't live in one of the 20 states which will deny unemployment benefits if an employee either admitted or was suspected of drug use.

To add injury to insult, conservatives are in the process of passing legislation to drug-test innocent people seeking unemployment benefits. Lest we forget, just recently, states like Georgia and Florida unsuccessfully tried to pass laws to deny welfare assistance to the poor applying for food stamps.

(6) Pharmacies: Pharmacies across the nation like CVS, Walgreens, and others, previously sold non-prescribed over-the-counter cold medicine like Theraflu and Sudafed. Both products contain pseudoephedrine. Claiming these cold medicines were used to cook up dangerous drugs the government passed the Combat Methamphetamine Epidemic Act of 2005, a law added into the Patriot Act. Now the medication is only available from a pharmacy and the purchaser must provide identification so that the pharmacist can enter the person's name, address, and product description into a specialized database. Purchasers of cold medicine now have their purchasing activities tracked.

(7) DEA Registration Number: Every dentist, physician, pharmacist and nurse practitioner has a DEA number that allows the DEA to monitor written prescriptions for controlled substances. Controlled substance prescriptions are sent to a DEA database. If doctors or pharmacists overprescribe medications they can expect a visit from law enforcement.

(8) Doctors Refusing to Prescribe Large Quantities: News media sources have reported how some doctors refuse to make multiple refills of pain medication due to fear they may be targeted by the DEA. Many doctors now limit the amount of prescribed pain pills to patients—no matter how bad they are suffering. Patients who need medication like oxycodone just to function properly are being denied refills to treat excruciating pain.

As if denial of refills is not enough to disturb you, this should sicken you: some chronic patients had to submit to drug-testing to show they have actually used their prescribed medication and haven't sold the pills to street dealers. If they test clean, they come under suspicion.

(9) Fedex and UPS: Our government has forced UPS (United Parcel Service) and Fedex to spy on customers' packages. Within the last 3-5 years the DEA investigated the companies for shipping alleged illegal drugs for online pharmacies. When the heat came down, a Fedex spokesman said, "At the heart of the investigation are sealed packages being sent by licensed pharmacies…These are medicines with legal prescriptions written by licensed physicians. So it's difficult for us to understand why we have some role in this. We deliver close to 10 million packages every day and we have no way of knowing specifically what's inside, and we have no interest in violating the privacy rights of our customers."

But ask yourself: How can we trust Fedex to protect customers’ privacy rights when both Fedex and UPS permit DEA and U.S. Custom Officials to access their national and international databases. Fedex also created a system to send reports of suspicious activity to Homeland Security using a discreet computer link.

(10) Property Seizures: Drug war policies violate the Fifth Amendment when government agencies like the DEA, U.S. Customs, IRS, and local law enforcement agencies seize property, various assets—or cash currency in drug cases. Legal experts have said this offending tactic violates due process under the presumption of innocence!

So how egregious is it when government takes properties and funds from a person before they are found guilty in a court of law, a person who is guaranteed the presumption of innocence under the Fifth Amendment?

Yes it is a stone cold fact that law enforcement is granted authority under a flimsy legal theory to take a citizen's property or money in narcotic cases even before a person is tried in court. In other cases, law enforcement can seize property belonging to someone who has not committed a crime simply because people on his property have been arrested for using drugs, regardless of whether the owner knows. In U.S. vs Caswell, the feds tried to illegally take Russ Caswell’s motel property in Tewksbury, Massachusetts after a number of drug arrests had occurred on Caswell's property, although owner Caswell previously helped police to make arrests and complied with police and city ordinances to beef up security on the premises and to report suspicious drug activities.

The scheme to rip-off Caswell property will blow your mind. Vincent Kelly, a DEA Special Agent assigned to Asset Forfeiture Division in New England testified under oath in the Caswell case that his job is to look for high dollar property similar in value to Caswell's $1.2 million property that had no mortgage or liens. Properties without mortgages and liens, according to Kelly, were ripe for forfeiture proceedings if people possess drugs on the property. Kelly explained in a matter-of-fact tone how he often checked the Registry of Deeds "to find out who owns the property, and how much equity it has."

Then, in a power grab, DEA Kelly contacted local police to see how many drug arrests or other serious crimes have been committed on the property in order to start forfeiture proceedings. Miraculously, Caswell, represented by Independent Justice Institute, won a major victory last year against the government to save his inherited property.

Seized properties and other assets are cash cows for the Feds. For example, according to Drugwarfacts.org, between 1989 and 2010, an estimated $12.6 billion dollars was seized by U.S. Attorneys in Asset Forfeiture cases. Meanwhile, the U.S. Treasury Department maintained a similar fund that held more than $400 million in assets in 2008.

Drug war policy is the worst assault ever upon the Constitution. The tragic irony is that one success the drug war can claim is curtailing the liberty and privacy of the American people.

Clarence Walker has written for the website Stop The Drug War and can be reached at Clarence.Walker.Newsmedia@gmail.com

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