By Chuck Strouse
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Congress also claimed from federal judges their authority to decide sentences, writing in 1984 a long list of mandatory minimum sentences that judges must apply without consideration of the circumstances of the particular crime or the defendant's character. (Predictably, defense attorneys hate mandatory minimums. But so do federal judges A 94 percent of whom were appointed by Republican presidents. The judicial councils of all twelve federal circuits passed resolutions in 1990 and 1991 asking Congress to reconsider mandatory sentencing. Even federal prosecutors are divided on it, according to a survey by the federal Sentencing Commission.)
Anyone defending a client in federal court also now faces the Speedy Trial Act of 1984, which says a federal case must come to trial within 70 days of indictment. "That sounds good," says Louisiana defense attorney Thomas Lorenzi, "but the feds take five years to prepare a case, then issue an indictent and bam! You're arraigned today, motions are due in fifteen days, trial in six weeks." The final blow of 1984 was a law allowing prosecutors to appeal a sentence, a right that used to be enjoyed almost exclusively by the defense. "They don't do it much, but they do have the right and the threat. [Prosecutors] use it to intimidate the defense into not appealing a trial issue if they won't appeal a sentencing issue," says Judy Clarke, a Spokane, Washington, federal defender who privately publishes the monthly Guideline Grapevine, which tracks federal sentences.
All in all, the passion to fight drugs has reversed the federal government's traditional leadership in holding states to a higher standard of civil rights. "When I started to practice law the state legislature would have to go into session every year to restrict their laws to comply with federal law," says Thomas Lorenzi. "Now they go into session every year to change their laws to take advantage of federal laws' new laxity."
Drug use and drug sale are crimes committed among willing participants -- unlike robbery, rape, or burglary. So investigating drug crime requires intrusion into peoples' lives. And the courts have shared Congress's willingness to make that intrusion ever easier. Every one of the federal wiretap warrants requested of federal judges in 1990 was approved; in fact, the Justice Department reports that annual use of federal wiretaps has more than quadrupled since 1980.
In drug case after drug case, the Supreme Court has radically loosened the rules surrounding search warrants, too. Two Illinois cases, in 1983 and 1987, permitted the issuance of search warrants based on anonymous information; another 1984 case permitted warrantless searches of fields, barns, and other private property near a residence; A 1986 California case permitted warrantless aerial surveillance of a home, and a 1989 Florida case lowered the permissible ceiling for aerial warrantless searches to 400 feet.
The Court justified its decision to permit pretrial preventive detention by explicitly comparing the War on Drugs to a war against another nation, ruling that in times of "war or insurrection, the government's regulatory interest in community safety can...outweigh an individual's liberty interest."
Conversely, the law increasingly fails to protect drug suspects from crimes committed against them. Prosecutors, judges, and juries have begun going easy on people -- especially parents -- accused of killing or abusing drug users, according to Abraham Abramovsky of the International Criminal Law Center at Fordham University Law School in New York. In one recent New York case, the Bronx district attorney dropped charges against a couple who chained their daughter to a radiator to prevent her from using drugs. In another, a Queens grand jury refused to indict a mother for murder for shooting her crack-addicted daughter; it indicted instead for manslaughter. "There's not a flood of these cases yet," said Abramovsky. "But I do see an emerging pattern."
In such cases, people who use drugs are considered beneath the full protection of the law. Women who use drugs while pregnant are likewise demonized. Prosecutors around the country are charging women with everything from drug trafficking to homicide for using illegal drugs during pregnancy, even though no state assigns special or additional statutory penalties for doing so. The Center for Reproductive Law & Policy has collected 167 cases of women thus tried, and though many beat the charges or had their cases dismissed, many others lost custody of their children and many went to prison. Perhaps most frightening, defense lawyers rarely challenge the validity of the charge and convince their clients instead to plead guilty. "As a result," argues the Center, "many women in America are serving jail terms or are on probation for non-existent crimes." The mainstream press isn't much concerned; in one particularly strident dispatch, New York Times columnist A.M. Rosenthal dismissed pregnant women who use drugs as "monsters."
Doctors, however, are becoming increasingly vocal about the intrusion of the punitive drug-war mentality into the field of medicine. Six prominent medical associations, including the American Medical Association, the American Academy of Pediatrics, and the American Public Health Association, publicly deplore the prosecution of pregnant women. "Criminal prosecution of chemically dependent women will have an overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing rather than preventing harm to children and society as a whole," the American Society for Addiction Medicine argues.