ACLU director speaks to students
Part 1 of a 2 part story
Students in Christopher Carey’s “Faith and Reason” Freshman Inquiry class got the chance on Tuesday to explore issues surrounding drug policy in the United States and Oregon with Oregon ACLU Executive Director David Fidanque.
In line with the University Studies goal of helping students develop critical inquiry skills, Carey invited both Fidanque and Erin Olsen, the district attorney, to speak to the issue on alternating days. On the heels of the Supreme Court ruling that supports a ban on medical marijuana use, students were interested in the ACLU’s position.
Fidanque spoke to the students about the changes in the Fourth Amendment’s interpretation over time and through changing circumstances.
The amendment, which makes it unlawful to search or seize a person or property without a warrant, has been granted exceptions, Fidanque said.
For instance, with the influx of drug trafficking with the use of motor vehicles, he said, automobiles must be searched immediately or the evidence will likely disappear. The same is true of intoxicated drivers: tests to determine blood alcohol level must be administered immediately before the alcohol leaves the body.
These exceptions, however, have begun to place more pressure on the Bill of Rights and citizens’ right to privacy, Fidanque said. Citizens are now losing property such as land, homes, cars and boats as a result of searches conducted with “probable cause.” These searches have not necessarily resulted in arrest or criminal charges, while the police have been allowed to keep much seized property even without charges.
Fidanque cited a Supreme Court case involving a leased yacht that was seized after one marijuana cigarette was found on board. The company that owned the yacht, Fidanque said, was never notified of the seizure and lost its property as a result of illegal activity in which they had no involvement. The court upheld the ruling, prompting Congress to make some provisions for such cases. Still, Fidanque emphasized, the burden has been placed on the property owner to prove there was no knowledge of an illegal connection with the property.
One primary concern with search and seizure laws is where the proceeds from the seized property go. As Fidanque noted, in most cases all money goes back into the law enforcement agency, providing amazingly high revenue for some agencies. The problem, Fidanque said, is the conflict of interest: while law enforcement officials are purportedly attempting to stop drug use and trafficking, they also profit from the illegal activity.
In November 2000, with the help of Fidanque, the ACLU and others, Ballot Measure 3 was introduced to help bring reform to search and seizure practices in Oregon. Passed by a majority of voters, the constitutional amendment is still under negotiations. According to Fidanque, the amendment, in its original form, still allows police to seize property without gaining a conviction first, but does not allow the agency to keep the property if no conviction is ever gained.
In addition, the measure seeks to prohibit using more than 25 percent of profits made from seized property for direct expenses, and would prevent any money from going to law enforcement, directing it instead to drug rehabilitation and prevention programs.
In the end, Fidanque said, the amendment will likely allow up to 40 percent of the profits to continue being funneled to law enforcement, while 40 percent will be directed to drug rehabilitation. The remaining 20 percent would be divided between the general fund and various other programs.
Regarding America’s “War on Drugs,” Fidanque feels we have lost.
“Government policies in place now will not eliminate drug use,” he said to the class. Fidanque explained the American reaction to alcohol prohibition early in the 20th century, drawing a parallel between it and the current drug problem.
Prohibiting legal use of drugs, he explained, creates a black market in which the profits are great because of demand. “Rather than dealing with some of the real problems caused or fueled by drug use like we have with alcohol,” we are fighting a losing battle with the drugs themselves, Fidanque said.
Instead of prohibiting drugs, which will likely always be used by some Americans regardless of the law, Fidanque suggests that decriminalizing or legalizing drugs in order to regulate them and take the profit away from the black market, is the only way to get the drug problem under control.
“If we decriminalize and regulate drugs, prices will drop and many of the crimes – especially property crimes – associated with drugs, will decline,” he said. “But we don’t live in a political climate that is particularly rational on this topic.”
While Oregon has some quite liberal laws, such as for small amounts of marijuana and the Medical Marijuana Act, the state is still subject to changes in the politics of drugs. Oregon’s liberal views on marijuana are in no way an indication that drugs will be legalized any time soon, Fidanque said.
On Thursday, Carey’s class will have an opportunity to hear Erin Olsen, the district attorney, address the other side of the issue, providing them a chance to put their critical inquiry skills to work. The students will be asked to use the information and questions raised for a paper and group presentations before the end of the term.