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'Zero Drug Tolerance'--a New Tyranny?

May 29, 1988|LAURENCE A. BENNER | Laurence A. Benner teaches criminal law and procedure at California Western School of Law in San Diego. and

The recent Customs Service and Coast Guard seizure of automobiles, yachts and fishing vessels--because trace amounts of marijuana or drug paraphernalia have been found in the purse of a passenger or shaving kit of a crewman--have provoked a public outcry against the federal government's "zero-tolerance" drug enforcement policy. Rather than indicating a lack of support for the war on drugs, this public reaction reflects the traditionally American abhorrence of extremism that lies at the heart of our constitutional system of criminal justice. In response, Atty. Gen. Edwin Meese III, while refusing to back away from the policy, has admitted that "some operational refinements" have been made.

It is sometimes forgotten that it was public opinion, forged during our struggle for independence from an oppressive colonial government, that demanded passage of a Bill of Rights to prevent the newly created federal government from having the same abusive power. The Fourth Amendment to the Constitution, which protects us against unreasonable search and seizure, was adopted in response to that popular mandate. Often maligned today because of the public's perception that it allows the guilty to get off on a technicality, the Fourth Amendment nevertheless remains an essential mainstay in securing our freedom from the excesses of governmental power.

The U.S. Supreme Court has created an exception for searches occurring at the border, exempting the government from the amendment's specific requirement of a warrant based on probable cause. This exception is based upon necessity. The federal government must be able to effectively control what comes across its borders, and full compliance with the Fourth Amendment would make this an impossible task.

The Supreme Court has also held that American ships on the high seas can be temporarily seized and boarded to check documents and carry out a safety inspection. The high court has never held, however, that this "administrative search" exception permits a Coast Guard commander to arbitrarily conduct an extensive search of a guest's or crewman's personal belongings under the pretext of conducting a safety inspection. In determining whether a law-enforcement practice is reasonable in the absence of probable cause, the Supreme Court has employed a balancing test. On the citizens' side of the scales, the court weighs the extent to which the rights protected by the Fourth Amendment are sacrificed. Counterbalanced on the government's side is the necessity for the law-enforcement practice and its productivity in promoting legitimate legislative objectives. A spokesman for the Coast Guard has indicated that less than 2% of these administrative boardings (affecting as many as 8,000 vessels annually) result in drugs being found. Does this return justify the invasion of privacy entailed? Will the next step be to extend such "safety" searches to our automobiles as we drive to work? The answers will affect what type of society we become.

The development of criminal law has been shaped by the concepts of deterrence and proportionality. These principles provide the moral basis for the state's infliction of punishment upon the individual citizen. The "zero tolerance" program has provoked public fury because, at least as it has been implemented recently, it has been perceived as inflicting punishment in a manner that runs counter to these basic premises.

The requirement of proportionality is captured in the commonplace saying, "The punishment should fit the crime." The seizure and threatened confiscation of the $80 million research vessel Atlantis II, simply because trace amounts of marijuana were found in articles belonging to a member of the crew, is perhaps the most glaring example of the lack of proportionality. But what of similar and less heralded seizures of small owner-operated fishing vessels? To deprive the fisherman of his only means of livelihood because of the residue left by a part-time member of the crew equally violates one's sense of proper proportion.

The theory of deterrence justifies punishment on the utilitarian ground that anti-social conduct can be prevented by the threatened pain of punishment.

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