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.
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