Better Dead Than Read?
In the summer of 1990, Miami Beach Police Chief Phillip Huber proposed a novel plan that he said would help the city cope with its increasing drug problem. When someone is arrested on drug charges in Miami Beach, why not send out a letter informing that person's employer? Not surprisingly, the issue created a lively constitutional debate. On one side were priests and prominent citizens, the governor, and the Dade state attorney. On the other side were outraged activists, defenders of civil liberties. And right in the middle was the Miami Beach City Commission, which finally approved the measure in January of this year, by the slimmest of margins.
Eleven months later, not a single drug letter has been written, stamped, or put in the mail. And although the American Civil Liberties Union has vowed all along to fight the issue in court, that group's challenge might well be moot now that the city commission has undergone its unprecedented electoral metamorphosis. Regardless of the outcome of Tuesday's run-off races, both men-who-would-be-mayor, as well as a clear majority of commissioners, say they are opposed to the new ordinance. Commissioner Martin Shapiro, who opposed the ordinance, says he has asked the city attorney's office to draft a resolution or ordinance to repeal the drug-letter law at the first meeting of the new commission, scheduled for December 4. "It's an elitist law that singles out working people. We're telling these people, `Hey, we're going to tell your boss,'" Shapiro argues. "And this is just punishment without a judicial determination of guilt. People's lives and careers can be destroyed with no finding of guilt."
When he first proposed the idea, Chief Huber suggested the measure might be meted out as punishment, publicly branding drug users by notifying their bosses and fellow workers. Then-Gov. Bob Martinez took a liking to that aspect of the scheme. "It is my strong belief," he wrote in a letter to Huber, "that the prospect of losing one's paycheck is an effective deterrent to the use of illegal drugs." But after several revisions, Huber changed the focus of his ordinance to counseling and treatment. And a choice was added to the plan: After an arrest, the suspect could choose between having the letter sent or going to court, where first-time and small-time offenders are given the option of undergoing drug treatment to avoid having the arrest put on their criminal record. A variety of influential figures and groups, including State Attorney Janet Reno and the Miami Coalition for a Drug-Free Community, backed Huber's plan.
The ACLU, however, did not. Attorneys for that group argued that the ordinance violates the constitutional guarantees of due process and right of privacy. They were not swayed by the drug-treatment alternative, nor by wording that stressed the employee has not been convicted and that the notification should not be used as a basis for dismissal. "It's a Draconian measure that would never accomplish the goal it was set up for," says Benjamin Waxman, one of the ACLU lawyers examining the issue, "and it clearly has the potential for punishment before the benefit of a trial." Even Huber's own legal advisers raised questions about what might happen should a letter be sent and the employee be fired - only to be found innocent later.
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The city agreed to let the ACLU find a test case, and they supplied a list of people arrested for drug offenses so that the group could contact potential clients who wanted to challenge the law before any letters were sent. If the ACLU could locate a client, the agency would move to block the letter in court, requesting that the law be reviewed. So far the ACLU has not been able to find a willing arrestee.
But Shapiro's proposal might put the issue to rest next month. "If they want to repeal it, then that should be the end of it," says City Attorney Laurence Feingold. "If they uphold it, then we'll move ahead." If the commissioners decide to keep the ordinance in place and the ACLU can't come up with a test case before the end of the year, Feingold says the city probably will start to send out letters.
Four commissioners voted for the law: Abe Resnick, William Shockett, Bruce Singer, and Stanley Arkin. After this month's elections, only Resnick remains on the commission. The other re-elected incumbent, Martin Shapiro, voted against the ordinance, as did Abe Hirschfeld and Mayor Alex Daoud. Newcomers Neisen Kasdin and Sy Eisenberg (who also served as commissioner from 1981-84), say that if they were asked to vote on the issue now, they would repeal it. Both mayoral candidates, Barry Kutun and Seymour Gelber, strongly oppose the measure. So do commission candidates Susan Gottlieb and David Dermer, who are vying for one of the unfilled seats. David Pearlson, a candidate for the other seat, is undecided, expressing reservations about the costs of potential litigation. His opponent, Jack Hartley, is against the ordinance.
Most of the commissioners and candidates express concern about the constitutionality of the law and the potential costs involved, especially damage awards that might be assessed if people sue the city and win. Some voice doubts that the plan will help drug users or Miami Beach. "I'm very skeptical of it being effective," says commissioner-elect Neisen Kasdin. "The drug problem is a national problem that has to do with societal values, crime, poverty, all these things, and it goes well beyond the city's ability to handle it on its own. You always have to keep an open mind, but based on what I know, I doubt this plan will in any measurable way reduce the drug problem in Miami Beach."
It may well come down to a matter of simple economics. "The costs associated with this thing could be prohibitive," says Feingold. "If we arrest a Delta Airlines employee here, we have to send a letter to Atlanta, and he might sue us up there. Then we're going to have to pay to travel there, and hire attorneys there, and everything else. There just seem to be more cost-effective ways to battle crime. The city just can't afford to be in court all the time.