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A Peace Plan for the Drug War - Feb. 9, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

The combat is intense. The violence escalates. Casualties mount. There is no end in sight. A mighty nation is at war with itself.

As in the case with many wars, this one began with belligerent rhetoric. Initially, politicians of all stripes sought to acquire the image of tough crime fighter. What better way to exhibit prowess than to embrace the metaphor of war? And so politicians all over the country did, one after another, year after year. A badge of valor was to be gained through sheer association with the fight.

But something happened on the way to the battlegrounds. In an effort to impress constituencies, congressional members passed a load of bills, so-called omnibus crime bills. Buried within volumes of pages lurked menacing language, which allowed law enforcement officials to engage in tactics that had no place in America. Clear provisions of the Fourth and Fifth Amendments of the Bill of Rights were suddenly disregarded.

Exceptions to the Posse Comitatus Act facilitated the militarization of police. Swat teams originally designed for hostage rescue were amply employed for drug and weapons possession arrests. Property was confiscated based on mere suspicion of drug involvement. Police began to engage in "no knock" raids. In some unfortunate cases, injury or death of innocent individuals resulted. High-tech, intrusive investigative procedures compromised the privacy of average citizens. The crack in the Liberty Bell grew conspicuously wide.

Then there was the matter of punishment. Mandatory minimum sentencing stripped away judicial discretion from the process. Inequity of punishment for criminal behavior surged. Scores of federally mandated minimum sentences found their way into a variety of criminal statutes. Offenders were routinely required to serve entire sentences, without the possibility of parole. This frequently made non-violent offenders the recipients of harsher sentences than those of rapists, robbers, arsonists or murderers.

The militarization of local police was perhaps the most serious fallout from the war ondrugs. In a free society, it is essential that a clean line of demarcation between the function of the military and the function of domestic law enforcement agents be steadfastly maintained. This was the primary reason for the passage of the Posse Comitatus Act. The law served to protect our citizens from military operations ever being directed specifically toward them. With this infrastructure in place, local police were able to act as peace officers, and soldiers had the task of defending national security. But when police were forced to become a kind of occupying military unit in the anti-drug effort, the relationship with the local citizenry suffered immeasurably.

It seems that our nation has now become a living example of good intentions gone horribly awry. People are ready to reexamine previously unassailable subjects. Caution is, of course, wholly advisable because the consequences of missteps are dire for all of society. But even more compelling is the fact that the public innately senses that the country is standing on the precipice of potential defeat in the drug war, and we could never abide such a loss.

Prominent conservatives, including Milton Friedman and William F. Buckley, Jr., have proposed legalization. Others, such as Governors George Pataki and Gary Johnson, have advocated reform. During the 2000 presidential campaign, George W. Bush expressed a willingness to consider substantial changes.

With what kinds of reform should we begin? By far, the most controversial suggestion involves partial or wholesale legalization of drugs. The legalization alternative, if hastily adopted, could be a Pandora's box, which once opened may release evils that would be difficult to ever again contain.

On the other hand, reform in the area of mandatory minimum sentencing seems completely reasonable. Modifications in this area may even help to alleviate some of the cynicism that has developed with regard to our justice system.

Reversal of the exceptions to the Posse Comitatus Act and elimination of the military influence on local police forces are constructive and essential remedies. Laws that conflict with the protection against unreasonable searches and seizures, set forth in the Fourth Amendment, and laws that are inconsistent with property rights protection and due process, set forth in the Fifth Amendment, simply need to be repealed.

Equally important to reform on the legal front is emphasis on treatment and education facets. This time around, we must be determined to be more selective, supporting only those proposals with proven track records.

Political ideology and moral persuasion aside, it is time to acknowledge that peace is long overdue, and reconciliation is a path we choose. We must find commonality in our desire to restore individual liberties. We must reach a consensus about that which is equitable when it comes to the administration of justice. We must concur that sustenance of the constitutional integrity of our system is vital to the strength and longevity of freedom.

And we must agree to end the war. Victory will be defined by the peace we fashion for the nation and the lives we jointly rescue from the spoils.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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