In Other Days under Other Flags


"This court. . . is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a 'war on drugs.' " So said the Supreme Court in a recent majority opinion. Noble words, but in that case and in a subsequent one involving the war on drugs the court's majority did, in effect, suspend constitutional guarantees.

First, the court ruled 6-3 that police officers searching for drugs may board and "sweep" a bus, asking riders for identification and their travel plans, then asking some to submit to searches, even though the officers have no reason to suspect the people they focus on have done anything unlawful. That is a classic "unreasonable search and seizure" of a citizen without a warrant and without probable cause that the Fourth Amendment specifically forbids. It is reminiscent of the 18th century colonial governments' despised "general warrants."

Previous Supreme Court decisions have approved of similar police tactics in circumstances where the individual approached was free to deny the request and leave. But that is not the circumstance in a detained bus in which the police officer stands over a seated passenger and between that individual and the door. For the passenger to leave the bus rather than submit to questioning and search would mean abandoning stored luggage and giving up freedom of travel to a given destination.

A lower court put this in perspective: "[It] evokes images of other days, under other flags, when no man traveled his country's roads or railways without fear or unwarranted interruption by individuals who held temporary power in the Government. The spectre of American citizens being asked by badge-wielding police for identification, travel papers. . . is foreign to any fair reading of the Constitution. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa."

In a second sortie in the war on drugs, the Supreme Court approved 5-4 a Michigan law mandating a life sentence without parole for possession of 1.5 pounds of cocaine. Eighty years of precedent call for proportionality in deciding if a punishment goes so far as to violate the Eighth Amendment's ban of "cruel and unusual" punishment. Life without parole is disproportionate for a crime that, if not "victimless," is not violent, and in its impact on individuals and society ranks well below other crimes for which limited sentences are routine.

Furthermore, as Justice Byron White, usually a hard-liner on criminal matters, noted in dissent, imposing so harsh a sentence for the "collateral effects" of the possession, when those effects are the result of numerous other factors, is as illogical as doing so the same thing to someone who possessed a large quality of alcohol.

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