Part TWENTY-SEVEN of our series on the WAR ON DRUGS – “The Evil Empire”.

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Show Notes:

Another thing that happened in the U.S. in the early 80s was the dismantling of civil protections regarding search warrants.

Keep in mind that the war on drugs has always been fuelled by a combination of two things: a) disenfranchising segments of society by criminalising the mostly harmless behaviour of a minority of people and b) playing on the fear the majority had of this minority to build up a political and policing infrastructure that strengthened the careers of the men in power.

In the 1930s, 40s, 50s, and 60s under Harry Anslinger, it was about targeting the blacks, the Mexicans, and the jazz musicians.

In the 70s under Nixon it was about the anti-war demonstrators and the civil rights movement.

In the 80s under Reagan it was about cementing his “tough on crime” position.

And by the 80s, the Republicans had managed to stack the Supreme Court with right-leaning Justices.

In 1983, four of them were Nixon appointees. Reagan, Eisenhower, LBJ, JFK and Ford all had one each.

The Burger Court.

Sounds delicious.

So seven of nine were appointed by Republicans.

One of things that was overturned by the Supreme Court in 1984 was the “two pronged” test, or the exclusionary rule.

Basically this rule meant that police couldn’t get a warrant to search your property or vehicle or arrest you, based on confidential informant or an anonymous tip. unless they could convince the judge signing the warrant that the informant was reliable and credible.

So you couldn’t get a warrant, or make an arrest, based on a completely anonymous tip.

The fear was that if you COULD do that, cops would just start inventing anonymous tips and use it to search or arrest anyone they didn’t like and hope it paid off.

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.

But in 1984, SCOTUS threw that law out.

They created something called the “good-faith exception” to the exclusionary rule.

This meant that police could now get a warrant to pull over your car just because they had a suspicion you were doing something illegal.

And the court would later decide if the search or arrest was justified or not based on the totality of the circumstances.

William Brennan, one of the dissenting Justices, said “The Court’s victory over the Fourth Amendment, is complete.”

Meanwhile Senator Strom Thurmond who represented South Carolina from 1954 until 2003, and who switched from being as Democrat to being a Republican in 1964 because he didn’t like the Civil Rights Act, was chairman of the Judiciary Committee.

He passed a new crime bill in the Senate that also wanted to get rid of the two pronged rule.

His bill passed the Senate three-to-one.

Thurmond is famous for leaving office as the only member of either chamber of Congress to reach the age of 100 while still in office.

And for the longest filibuster ever by a lone senator, at 24 hours and 18 minutes in length, nonstop, in 1957 to oppose the Civil Rights Act.

Six months after Thurmond died at the age of 100 in 2003, his secret mixed-race, then 78-year-old daughter Essie Mae Washington-Williams revealed he was her father and that he’d raped her mother in 1925 when she had been his family’s maid and was aged 15.

So Strom’s bill passed the Senate.

The vote was 91 to 1.

The lone dissenter was Senator Charles McC. Mathias Jr., Republican of Maryland, who opposed uniform sentencing, a provision of the bill, as ”ill-conceived, inflexible and potentially quite costly” because it could add to prison crowding.

‘This is, for the most part, a bill designed to give the American people the impression that the U.S. Senate is doing something about crime.”

Earlier, the Senate rejected an amendment that would have made it illegal for Government officials to secretly tape-record telephone conversations.

Senator Howard M. Metzenbaum, an Ohio Democrat, said, ”I am beginning to think that there is a lot more secret taping gong on in this Government than we have imagined.”

The principal sponsors were Senators Thurmond of South Carolina and Paul Laxalt of Nevada, both Republicans, and Joseph R. Biden Jr. of Delaware and Edward M. Kennedy of Massachusetts, both Democrats.

But would it pass the House, controlled by the Democrats?

Republican congressman Dan Lungren of California came up with a new trick to force it through.

On September 25 he made a motion to attach a brand-new House bill, identical to the Senate bill, to a “must pass” appropriations bill and send it to the full House for a vote.

If the House delayed or failed to pass it, federal funding would freeze and the entire government would shut down.

It was a 419-page bill, and under House rules only five minutes of debate was permitted.

“The American people have shown in the latest poll that this is the number one issue for them!” Lungren exhorted his colleagues.

“Do not worry about next week! Do not worry about last week!” Faced with the choice of giving in or leaving the government with no money to run on, the House voted yay.

By the time the horse trading was over on October 11, the Omnibus Crime Bill of 1984 gave huge new powers to prosecutors.

It was the first comprehensive revision of the U.S. criminal code since the early 1900s.

It substantially boosted maximum prison terms for drug crimes.

It stipulated that anybody charged with a drug crime that might result in a ten-year sentence is presumed dangerous and can be held without bail.

It axed a long-standing program that expunged the records of first-time drug offenders between eighteen and twenty-six who’d served their time.

It increased federal penalties for cultivation, possession, or transfer of marijuana.

And it opened up civil forfeiture to seize assets of organized crime.

Just by getting a warrant – which was easier than ever – cops could seize cash, cars, boats, homes, bank accounts, stock portfolios — anything believed to have been purchased with drug money or equal in value to the money believed earned from drug sales.

No charge, indictment, trial, or conviction was necessary, and the burden of proof was placed on the person whose assets were seized.

Drug offenses were the target; accused murderers, kidnappers, or rapists were in no danger of losing their assets without trial.

And to restore a sense of “poetic justice,” the new law allowed seized assets to be shared among the law enforcement agencies involved in the case.

A fund would be created from seized assets, the law decreed, and beginning in 1986 state and local police could apply for a spoonful.

By 1991, the fund would contain $1.6 billion, of which state and local police would enjoy more than $265 million.

At the time, there were budget cuts and law enforcement was doing it rough, especially at the state level.

So this law gave local police a powerful incentive to take their drug cases federal.

Worse, it inspired police to make cases solely to bolster their own agencies’ coffers.

The age of free-market criminal justice was dawning.

One of the impacts of Reagan’s new crime bill that allowed for assets to be seized BEFORE there was any proof of wrong-doing, is that it made it more difficult for the accused to hire legal representation.

Can’t hire a good lawyer if you don’t have any money.

So they were forced to use overworked public defenders.

Imagine you’re a regular Joe, with little in the way of savings and assets, and the cops claim you’re selling drugs.

They take your house and your bank account and you have to fight to get them back.

As one federal prosecutor said: “Under the Constitution, defendants are entitled to legal advice, not to high-priced advice.”

To enforce the new law, defense lawyers could be subpoenaed to tell how much they received as retainer and how they were paid.

Defense lawyers, in other words, would now be pressed into service as witnesses for the prosecution.

Number of wire tap requests submitted to federal judges by the Justice Department in 1983: 648.

Percentage change from 1982: +60.

Percentage approved: 100.

In the mid-80s, employers started to become active players in the war on drugs.

Urine testing was in 1985 a $100 million business.

One small urine lab, founded in 1983, posted a 450 percent increase in profits between 1984 and 1985.

By 1984, a fifth of the Fortune 500 corporations had some kind of urine-testing program.

A year later, a quarter had such a program, and two years later it would be more than half.

Carlton Turner said he expected that “every major corporation in the US within the next three to five years will have a pre-employment screening,” and the Wall Street Journal predicted that urine testing would be a $250 million industry by the end of the decade.

Actually, it turned out to be $300 million.

In his book “Steal This Urine Test: Fighting Drug Hysteria in America” Abbie Hoffman, the political and social activist, called urine testing, “The Gold Rush of the Eighties,”

Hoffman also wrote the famous books “Fuck the System” and “Steal This Book”.

Employers were firing people who tested positive, even though the testing standards were terrible.

The CDC did a nine year study that found most results were inaccurate.

At a conference of forensic scientists in Cincinnati, the chief toxicologist for North Carolina’s medical examiner asked, “Is there anybody in the audience who would submit urine for cannaboid testing if his career, reputation, freedom, or livelihood depended on it?”

Not a single hand was raised.

With this new focus from the Reagan administration, the corporate media also amped up their coverage of drugs.

The media was looking for ways to capitalize on the fears being generated against the new menace.

Cocaine was no longer the party drug of rock stars.

Newsweek’s cover on February 25, 1985, was “Cocaine: The Evil Empire.”

The photo was a guy snorting a line.

Reagan’s new attorney general, Edwin Meese III, didn’t think it was enough to go after the pushers and the people bringing drugs into the country.

That approach wasn’t working anyway.

Cocaine prices were falling due to over supply.

And as the efforts were directed against offshore targets and high-level crooks, federal law enforcement was becoming invisible again to the average citizen.

So where’s the PR value in that?

He wanted to go after the users, too.

Meese knew who the drug users were: “The young people who got hooked on drugs in the 1960s and ’70s took their habits with them as they grew older,” he told the president and cabinet. “It is therefore no surprise to find that marijuana and cocaine are favorite ‘recreational’ drugs among the so-called young, upwardly mobile professionals.’ . . . We can — and we must — discourage drug use among the successful and affluent.”

Which begs the question – if taking drugs makes you successful and affluent, where’s the problem?

Shouldn’t they be giving drugs away?

Another brilliant argument Reagan’s people were making at the time went like this:

“Alcohol and tobacco are used by much larger populations than the illicit drugs and are related to fully 25 percent of deaths in this country each year.”

So If you legalized drugs, cocaine would be used by as many people as cigarettes.

Therefore, in a sense, 90 percent of our cocaine problem is being handled by our current supply reduction efforts. . . . Conclusion: . . . supply reduction works.”