Although I don’t practice criminal law, I recently found myself waiting in a courtroom during a sentencing. The accused was a young man of perhaps twenty, who had rather imprudently sold six grams of cannabis resin to a police officer, pocketing the grand sum of about $100. He pleaded guilty, and the crown and defense lawyers debated over whether he should spend 45 days in jail, or only 30.
The judge remarked matter of factly that the accused had already spent quite a bit of time in jail for one so young, and gave him 30 days.
The convicted man appeared equally nonchalant about the proceedings. He didn’t look surly or rebellious. On the other hand, he didn’t look contrite or penitent either. There was little doubt in my mind that this brief courtroom episode did not spell the end of his career in the cannabis trade. In fact, it seemed likely that he would continue to do business right within the jail-house walls. A recent study found that 13 percent of the inmates in federal prisons have illegal drugs in their veins.
For the millionth time, I wondered just what this country is trying to accomplish with its drug laws. Why do taxpayers have to pay for policemen, judges, crown counsel, prison guards, and probation officers, all to accomplish precisely nothing?
Apparently, even the close scrutiny and regimentation of prison life is not sufficiently intrusive to stem the flow of mind-altering drugs to those who enjoy altering their minds. Even if we were prepared to transform the country into one gigantic jail, there’s no guarantee we’d be any more successful at stamping out drug use than our existing jails have been.
The Economist magazine estimates that the U.S. has spent over $100 billion on the drug war since 1980, yet indicators such as student surveys and hospital emergency-room admissions show no significant impact on drug experimentation or abuse.
It’s not just the waste of money that’s objectionable. The war on drugs is creating many other harmful consequences for North American society. Canada is following the U.S. into one legislated nightmare after another, and will soon start to pay the same social price. It is time to identify those costs and weigh them against the questionable benefits of our policy of prohibition.
Perhaps the person who coined the phrase “the war on drugs” thought of it as just a catchy figure of speech. For the people involved in the drug trade, however, the resemblance to war is more real than metaphorical. Their incomes, their physical safety, and indeed their very lives are endangered by the law. The war on drugs is actually a war against drug traders.
What would you expect any group of people to do if their government declared war on them? The faint of heart would quickly retire from the battle. The more ferocious ones would choose instead to defend themselves. And if the people who were warring with them had guns, as our police officers do, then it follows as day follows night that the combatants on the outlaw side of the war would have to arm themselves too.
Wars usually result in some civilian casualties. The war on drugs is no different. The innocent people who are caught in the crossfire between rival gangs (or between drug dealers and police), the children who can’t play outdoors because their neighborhoods are unsafe, the people who are mugged on the streets or whose homes are burglarized by punks looking for drug money — they are all victims not of the drug trade, but of the drug war.
There are other drugs, legal drugs — like alcohol, nicotine and caffeine — that are perhaps equally addictive and equally unhealthy, but no one totes a gun around to safeguard a purchase of Taster’s Choice. Maxwell House and Nescafe don’t have shoot-’em-up turf wars. It is only when the law intervenes to prohibit the trade in such substances (as with alcohol during Prohibition), or to create territorial price differentials which reward smuggling (as with cigarettes in Canada earlier this year), that gunfire starts to become a familiar sound near trading zones.
The resemblance to real war goes further still. In the war on drugs, police have the same problem that American soldiers had in Vietnam. The enemy-drug traffickers are visually indistinguishable from the rest of the population. So the conflict becomes a guerrilla war in which everyone is a suspect. The temptation for nervous cops to abuse their power must be strong. Racial minorities who complain that the police pick on them are probably not imagining it. The resulting racial tension is becoming palpable on the streets of our major cities.
There are worse horrors to come. The war on drugs has led inexorably to a war on guns. The antigun crusaders would like to disarm everyone except the military and the police. Of course, no one expects the drug dealers to miraculously turn in their weapons. The law-abiding majority of the population, disarmed, will be sitting ducks, defenseless against violent criminals on the one hand and an ever more powerful police state on the other.
Canadians don’t have to approve of drug use, but it’s about time we just said no to the war on drugs.
Part II
In Part I, I suggested that the war on drugs was creating more problems for this country than it was solving. I mentioned the waste of money, the increase in violence, the racial tension, and the dangers to law-abiding, freedom-loving citizens from the concomitant gun control crusade.
The war on drugs is an example of Canada’s predilection for mimicking the very worst policies that the United States can dream up. We are now showing signs of following them down yet another path in the antidrug maze, one that promises to lead to even greater horrors than those I wrote about previously. I’m referring to the asset seizure and money-laundering laws.
A decade ago, U.S. federal racketeering laws were changed to permit the government to seize suspected crime proceeds without first charging, let alone convicting, the owner. As well, financial institutions were required to report all transactions over $10,000 and smaller serial transactions if they appear to be designed to avoid the $10,000 limit.
According to Jarret B. Wollstein, associate editor of The Financial Privacy Report , there are now over 200 confiscation laws on the books. Thousands of federal, state, and local police departments and agencies have gotten into this game. More than 5,000 confiscations occur each week.
The potential abuses of this kind of legislation were obvious from the start. The police force that makes a seizure usually gets to keep at least a percentage, if not all, of the property it seizes, augmenting its departmental budget significantly. No wonder so many police chiefs and officers are opposed to legalizing drugs.
According to one former Los Angeles County sheriff’s officer, corrupt policemen in his department stole as much as $15 million in forfeited property by planting drugs on innocent people and falsifying police reports.
Homes, furnishings, boats, and cars are often seized, then auctioned off. It’s a great opportunity for covetous neighbours or vengeful ex-spouses to snitch and then pick up some goodies cheap at the auction.
Informants are paid a commission by the Drug Enforcement Agency (DEA) for reporting suspicious transactions. That friendly airline clerk could turn you in for something as simple as paying cash for your ticket.
Some Americans have had property seized on such scant evidence as police dogs reacting to traces of cocaine on dollar bills. However, two separate studies have found that over 80 percent of the bills in circulation test positive for cocaine.
In 1992, more than $2 billion in assets were seized in the U.S., often from people who were innocent of any wrongdoing. Indeed, according to an investigation done by The Pittsburgh Press , “80 percent of the people who lost property to the federal government were never charged.” Some people have been killed by police in attempted property seizures.
Contesting a seizure is no easy matter for U.S. residents. You have to post a bond equal to 10 percent of your property’s value, and then you have to hire a lawyer. If the property that has been seized is everything you own, you might as well kiss it good-bye.
In 1989, with little opposition, Canada passed amendments to the Criminal Code which allow the seizure of suspected proceeds of crime without the laying of criminal charges. In 1991, we passed the Proceeds of Crime Act, requiring financial institutions (and lawyers) to keep records of clients’ cash transactions exceeding regulated limits — currently $10,000.
While our laws do not appear to have given the same carte blanche to police officers as some U.S. laws (at least, not yet), it is frightening to examine the attitudes of those who advocate these policies.
Otto Jelinek, then Revenue Minister, dismissed the concerns of civil libertarians who warned against adopting the Americans’ presumption of guilt. “I don’t care who’s going to be upset,” he said. “I’ll take the heat.” The heat is now off for Mr. Jelinek. He has retired from Parliament. The law remains.
Canadian Press reported in December 1988 that police across Canada were “eagerly gearing up to seize tens of millions of dollars in cash, homes, cars, boats [and] planes.” An RCMP officer boasted, “Conceivably, there could be a cleaning up of property. . . . It’s conceivable that drug enforcement will not cost the taxpayer a nickel.”
Michael Dambrot, director of drug prosecutions strategy for the Department of Justice, said in 1991: “One of the major complaints that the police have with the Department of Justice in this area is that we do not make anywhere near the number of restraint order and special search warrant applications that the police have asked us to make.”
The Lawyers Weekly interviewed Conservative MP Bill Kempling in 1991 about the possible extension of mere record-keeping requirements to full-blown reporting requirements. “It’s coming,” he said: “You never do these things all in one swoop, as you know.”
In January 1993, Canadian Press reported that “Edmonton police will do fewer high-level drug investigations unless they get a cut of the money they seize in busts,” according to a police superintendent. Municipal police forces in Ontario are also clamouring for legislative amendments to let them share in the loot.
In the big Montreal drug bust of August 1994, one RCMP officer crowed: “We seized their dope, their money, we froze their houses, their bank accounts. They’re just left with 25 cents for a phone call.”
The unseemly rush to grab a share of drug profits makes government look more like a partner in crime than a protector against crime. Bad laws inevitably beget other bad laws. The solution is to admit the original error and repeal the root of the problem, not to prop it up with increasingly totalitarian measures.
We must say no to the war on drugs before privacy, property rights and the presumption of innocence become its casualties.
This article originally appeared in Canadian Lawyer. Reprinted by permission.