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