Drug War Casualties

Detroit police officers Walter Budzyn and Larry Nevers have something in common with Malice Green -- the young man in whose death the two officers were convicted of second degree murder by a Detroit jury in 1993.

The three met for the first and last time in the early morning hours of November 5, 1992 on a near westside Detroit street. The officers, on routine patrol, became suspicious as soon as they spotted Mr. Green.

What was the 35-year-old black man doing that prompted the veteran, white officers to investigate his behavior? What was the "probable cause" to suspect he may have committed a crime?

He was sitting in a parked car which, contrary to their initial suspicions, a quick check confirmed was not stolen.

"Doing what?" one might well ask. Struggling with another person, perhaps? No. Brandishing a weapon? No. Screaming obscenities at passersby, then? No, he was just sitting there quietly. It wasn't so much his behavior as his location. The vehicle was parked outside a known crack house.

One can't help but wonder what the framers of our constitution would have thought of our contemporary definition of "probable cause." And it isn't just sitting quietly in a parked car, either. Courts have also recently ruled that merely matching a police profile can justify being subjected to scrutiny by the authorities. If you are Hispanic and like to dress nicely, be advised you ought not purchase an airplane ticket with cash. You may well find yourself detained and questioned.

Think you have the right to be protected from warrantless intrusions into your private property? No longer. This little "technicality" had to give way to the possibility that you may be destroying evidence in your home or transporting it in your vehicle. Well, okay, but at least your financial privacy remains, right? Sorry. Banks are now required to record all cash transaction of $3,000 or more and report to the government any that exceed $10,000. You could be a drug dealer trying to launder money.

And it's not just the Fourth amendment, either. Our government has managed to throw out (officials prefer to say "make exceptions to") major portions of the Bill of Rights in the quixotic quest to protect adult Americans from the consequences of their own bad habits.

Were you under the impression that your freedom of religion is guaranteed under the First amendment and that Congress can make no law "prohibiting the free exercise thereof"? Ask the Rostafarians who wish to use marijuana in their ceremonies. The courts have ruled that the holy cause of the Drug Jihad trumps the free exercise of religion. Had Catholics been a similarly small sect at the time one can't help but wonder what might have happened to their sacraments during our previous "noble experiment."

How would the drafters of the Fifth amendment prohibition against taking "life liberty or property without due process of law" have felt about the circumventing of this protection by the simple device of charging the property itself (which, of course, has no constitutional rights) instead of its owner (who does) under the new asset forfeiture rules? State of Michigan vs. one 1977 Pontiac. If it wasn't so tragic for the people involved, it would be laughable.

Then there's the Eighth amendment. Wouldn't losing the family home for the crime of not noticing that your teenager had a marijuana plant growing in the backyard be the kind of thing George Washington and Thomas Jefferson --hemp farmers, themselves -- had in mind when they prohibited "excessive fines"? Wouldn't the founders have considered it "cruel and unusual punishment" to impose the same penalty for possessing less than two pounds of certain refined plant produce as is imposed for first degree murder?

The common thread behind this evisceration of the individual rights that have historically distinguished Americans from all other peoples on earth is this: The only way to have even half a chance of enforcing any kind of prohibition is to eliminate the presumption of innocence. People must be presumed guilty and treated as such in everything from their banking to where they sit in a parked car until they can prove their innocence.

What do Walter Budzyn and Larry Nevers and Malice Green have in common? All three have become casualties in the War on Drugs. Along with millions of others. And, most tragically of all, the United States Constitution.

After four years in prison the courts have overturned the convictions of both police officers because the emotionally charged setting, compounded by errors by the trial judge and some bizarrely inflammatory remarks by the mayor of the city, effectively denied them a fair trial. Budzyn's retrial has already begun. Prosecutors are expected to retry Nevers, as well.

But, at least for Malice Green, the War on Drugs was an unqualified success: he no longer takes cocaine and never will again.

Tim O'Brien is the Executive Director of the Libertarian Party of Michigan.