The (In)Fertile Constitutional Ground of American Drug Policy

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Ten years ago, Frank Zimring chastised legal academia for being insufficiently relevant in their teaching and scholarship. “Over a thousand of the best and the brightest criminal minds in America have been missing in action” from one of the “key debates of their field”—the War on Drugs. Zimring’s claim may have been inflated, but he raised a fair point about the relative insignificance of this governmental crusade in legal scholarship and education vis-à-vis its impact on society.  

In his recent book, The Constitution of the War on Drugs (CWD), David Pozen brings his con law talents to the crime-infested world of narcotics regulation and responds (albeit indirectly) to Zimring’s clarion call. But there is one caveat that distinguishes this slim, readable book from previous takes: Pozen is less interested in the criminal procedure questions that scholars of drug policy have obsessed over (though he nods to them and describes them to the non-legal reader). Instead, he is interested in constitutional provisions that have been used to challenge drug prohibitionism.

From my reading, Pozen seems animated by several questions, most relevantly: Where was constitutional law during this albatross of a policy experiment? How did litigators deploy constitutional provisions? Where were the missteps by advocates and courts? Did glimmers of constitutional hope exist? What were the paths not taken? In this vein, the reader gets some freedom of speech and religion, equal protection, commerce clause, penumbral privacy, and even a drizzle of comparative constitutional law, amongst other issues. In the end, Pozen shows how, in some instances, federal constitutional provisions (and state analogs) provided opportunities for challenging the War on Drugs but were ultimately overturned, rejected, or not fully adopted.

My goal here is not to rehash the analysis of a book that I think students of criminal justice and constitutional culture should buy, read, and engage. Instead, I want to raise a few issues that stood out to me as someone ensconced in that first camp, but who cares about the latter. My hope here is to trigger more inquiries or prompt additional discussion from Pozen.

One issue is a faint intersection of administrative constitutionalism and executive power (mainly the investigative and advisory functions of presidential commissions). To be sure, these are not themes in the book but byproducts of my own crumb-catching throughout it. In the interior parts of CWD, Pozen mentions different points in time and different constituencies that sound the alarm on drug prohibition, particularly as it relates to marijuana. I think there is more there there than Pozen identifies that’s worthy of unveiling.

In 1963, the Kennedy Administration’s White House Conference on Narcotics and Drug Abuse noted that “the hazards of marihuana per se have been exaggerated” and criticized “long criminal sentences imposed on an occasional user or possessor.”

Four years later, LBJ’s Crime Commission pooh-poohed the legal equation of pot with opiates and called for “giving more discretion in the sentencing of marijuana offenders to the courts or correctional institutions.”

In 1972, the National Commission on Marihuana and Drug Abuse, which was created by Congress and stocked with Nixon appointees, concluded that the “application of the criminal law to private possession” was “constitutionally suspect” and recommended decriminalization (which was ignored).

That same year, the Department of Health, Education, and Welfare Department suppressed a study that found that the use of drugs can be “a highly moral, productive, and personally fulfilling” pursuit. (Pozen is rather modest here. The study also noted that drug laws had little deterrent effect because of the common perception among young people that “drug use is not, or should not be, a criminal act because everybody does it, and because things done to oneself are constitutionally protected”).

In 1977, the National Governors' Conference, in conjunction with the DOJ and subunits (Law Enforcement Assistance Administration and what is now the National Institute of Justice), made the following statement: “Certainly long terms of confinement for simple possession would be unconstitutionally excessive.”

There is also Pozen’s fascinating recovery of a Chief Administrative Law Judge’s 1988 ruling. The ALJ, who worked within the Drug Enforcement Administration, concluded that marijuana should be rescheduled. That ruling was subsequently overruled.

So, by my score, there were at least six instances before, at the outset, and during the throes of the War on Drugs where congressional and presidential advisory commissions, along with agencies, gestured toward the unconstitutionality of drug prohibitionism. That’s a small n. It pales in comparison to the innovative state supreme court decisions and restrictive SCOTUS cases Pozen deftly weaves through, but it says something about the efficacy (or lack thereof) of drug policy experts—a group that also includes the non-profit organizations cataloged in the book. All of them lodged public health, sociological, and legal arguments that were ultimately disregarded, which raises the question of what role experts should play in crafting constitutionally sound drug policy (an issue one of the commentators has thoughtfully opined on for some time).

Perhaps this point is moot; Pozen's former judge and now Attorney General Merrick Garland got the memo (maybe from experts, maybe from his former clerk?) and submitted a proposal this week that would reschedule marijuana from the devastating category of Schedule I to Schedule III, which could augur a new chapter in American policy. But there’s also the Oregon problem. The Beaver State listened to the experts and tried to take the public health-oriented approach of declassifying various drugs in 2020 with Measure 110. Now is now saying never mind and recently recriminalized various drugs. There are competing explanations about what happened. Some experts emphasize poor execution, impatience, and COVID. Some say the legislators didn’t really understand the nature of addiction. Others point to the familiar tropes of public drug use and homelessness. But the point here is that the experts are not in agreement about what happened with one of the boldest approaches to relaxing punitive drug policy.

A separate topic surfaced in my reading of CWD: the problem issue of judicial deference. Across the chapters, a pattern emerges. Local courts recognize the problems a drug policy poses to a particular constitutional provision. Some courts innovated. The list here is impressive and includes: People v. Lorentzen (Michigan law mandating 20 years’ imprisonment for sale of marijuana ruled cruel and unusual under state and federal constitutions); People v. McCabe (concluding that the classification of marijuana was not rational); State v. Russell (finding that different penalties for similar amounts of crack and cocaine violated Minnesota’s Equal Protection Clause); Ravin v. State (ruling that the right to privacy protects small amounts of personal marijuana use); and People v. Woody (California violated the religious liberty of members of the Native American Church who used peyote). The logic of these cases traveled internationally.

But there were way more courts that simply said their hands were tied. Pozen describes how Hawaii and Colorado supreme courts acknowledged that alcohol was more dangerous than marijuana and that its classification invited overzealous police practices. Ultimately, they said, look to the legislature; there’s nothing we can do here. Other courts noted the empirically demonstrated, racially disparate effects of drug policies, with one judge apologizing before sentencing the defendant to a 30-year bid under a law he thought treated black people unfairly and another crying (yes, crying) about the “grave miscarriage of justice” he was carrying out. For some, this reluctance might viewed as pusillanimous when compared to the previous era of liberal-activist Warren Court jurisprudence or contemporary conservatives’ disposal of certain precedents. 

Some of the explanations for this reluctance are predictable and include separation of powers and judicial competence—you know, the tropes that are common in 1L con law. But there are other explanations. An important one that hasn’t surfaced in much literature is anti-modalities—which Pozen has theorized with Adam Samaha. These are issues that are relevant to constitutional law but are precluded from explicit consideration in constitutional analyses (think cost-benefit analyses, policy arguments, and welfare effects of certain judicial choices).

But I wonder if there are other explanations going on with this judicial resistance—some of which are elevated in CWD but not for this particular idea? This might be race indifference (e.g., “the epistemic contract of responsible-drug-use erasure” that permits white and/or white collar professionals to smoke and snort while their minority/poor counterparts are punished); beliefs that drug use had nothing to do with religion or privacy; and/or genuine fear about heroin in the 70s and crack in the 80s that spilled over into marijuana (particularly in minority communities). My question here is not an invitation for psychoanalysis (though I imagine Pozen could capably pull that off too), but a solicitation to linger more deeply on why some judges were okay innovating in drug policy jurisprudence and others passed the buck.

Other issues arose for me that are far from miscellaneous but hard to do full justice in a short review. Is the Millian harm principle accurate? There are available critiques of the idea of non-violent drug possession that point to not-that-distant social harms. I’m thinking here about the youth mental health crisis and the concern that young people might be medicating with decriminalized drugs in ways we might not fully understand yet. (Of course, they were doing it before decriminalization, but the comparative point is TBD). There’s the worry about how decriminalization might tax health services (again, the Oregon example) and the problem of drug-induced violence (e.g., intimate partner violence, child abuse, and plain old assault and battery)—which is not exclusive to drugs and applies to alcohol, but still doesn’t assuage fears about decriminalization.

I also wonder if the welfare state provides a different way of tackling the war on drugs? The big case here is HUD v. Rucker, where a unanimous Court greenlighted eviction of tenants for drug-related activity of non-tenant relatives or guests regardless of whether tenants knew, or should have known, about the activity. The case raised some non-criminal procedure Due Process issues that the Court side-stepped using Chevron deference (which may not exist soon). The logic of drug use disqualifying one for public benefits has extended to food stamps, though some states are slowly having a change of heart. The potential rescheduling of marijuana, alongside state decriminalization efforts, raise some interesting questions about how advocates might focus on the other constitutional dimensions of this ongoing war. I’d be curious to hear what advice Pozen has to them on this front.

 I remember reading an article in the New York Times that asked 30 experts to think “big, but realistically about the opioid crisis.” There wasn’t one observable law professor on the list. Dave Pozen’s The Constitution of the War on Drugs shows us that constitutional law has something to offer drug policy—and not just the criminal procedure variant. My hope is that others in the field will pick up the baton and bring their expertise to this important area of welfare and penal policy. 

Shaun Ossei-Owusu is a Presidential Professor of Law at the University of Pennsylvania Carey Law School. He can be reached at oss@law.upenn.edu.