Fifth and Sixth Amendments
The Sixth Amendment reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
For standard crimes like murder, theft, rape and the like, it is perhaps possible to have trials reasonably available to every suspect. But there are simply too many drug offenders for this and no victims to serve as reliable witnesses. So the standard of evidence has been lowered to the point where the mere existence of enough cash and a cop’s say-so is enough to convict.
What’s more, defense attorneys are often burdened with a hundred clients at once, so they must prioritize and leave those who are fated to only a year in prison to lesser hearings. Some judges have even refused to assign public defenders in drug cases.
A dangerous alternative to the trial system is the "drug court," wrongly touted by some reformers, including the Obama administration. In Obama and Biden’s "Blueprint for Change" they propose to "Expand Use of Drug Courts" to "give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior."
But as Morris Hoffman, a state trial judge in Denver and an adjunct professor of law at the University of Colorado, warned at the USA Today blog in October last year:
[It’s] not just that drug courts don't work, or don't work well. They have the perverse effect of sending more drug defendants to prison, because their poor treatment results get swamped by an increase in the number of drug arrests. By virtue of a phenomenon social scientists call "net-widening," the very existence of drug courts stimulates drug arrests.
Police are no longer arresting criminals, they are trolling for patients. Denver's drug arrests almost tripled in the two years after we began our drug court. At the end of those two years, we were sending almost twice the number of drug defendants to prison than we did before drug court.
Attempting to win the drug war, even in a more progressive sense, is thus no substitute for abandoning it altogether. The only change I can believe we’ll see under Obama is more erosion of the Sixth Amendment.
We’re just getting started. The Fifth Amendment states: "No person shall be. . . subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Mandatory drug testing can be seen as self-incrimination, as soon as the results are used in criminal prosecution. Civil asset forfeiture has allowed for the deprivation of life and liberty without due process, and also for the effective phenomenon of double jeopardy, as people are punished both in the civil and criminal systems.
The Psychotropic Substances Act of 1978 expanded the use of forfeiture to include any property connected to the drug crime in any manner. An early 1990s study estimated that 80% of people who lost their property to civil asset forfeiture were never charged with a crime.
We often hear of money being confiscated for drug residue, which can be found on over 90% of the cash in circulation. We hear of people losing their homes, cars, boats and businesses because of the presence of marijuana seeds. The drive to get loot, some of which police get to personally keep, has even led to some deaths, as was the case with Donald Scott, a California rancher gunned down because bureaucrats wanted to seize his land on which they claimed they found some seeds. Michael Bradbury, the Ventura County DA, said that the police raid was "motivated at least in part, by a desire to seize and forfeit the ranch for the government... [The] search warrant became Donald Scott’s death warrant."