DRUG POLICY LITIGATION PROJECT

A Report of Activities, 1999-2001

An ACLU Report DRUG POLICY LITIGATION PROJECT A Report of Activities, 1999-2001

An ACLU Report ACLU DRUG POLICY LITIGATION PROJECT A Report of Activities, 1999-2001

Compiled and written by Fatema Gunja

Edited by Graham Boyd and Norma Fritz

Design by Sara Glover

Published March 2002

Drug Policy Litigation Project 85 Willow Street New Haven, CT 06511 tel: 203 787-4188 fax: 203 787-4199 www.aclu.org/drugpolicy TABLE OF CONTENTS

DPLP Staff ...... ii Public Policy & Education ...... 13 DPLP Initiatives ...... 13 Mission Statement ...... iii Civil Asset Forfeiture ...... 13 Drug Education ...... 13 A Message from the Director . . . .iv Drug Testing ...... 14 Felony Disenfranchisement . . . .14 The Assault on Civil Liberties ...... 15 1 & Civil Rights ...... Higher Education Act ...... 15 1 Rights Under Attack ...... Medical Marijuana ...... 15 1 Litigation ...... Methadone ...... 16 1 Civil Asset Forfeiture ...... Pain ...... 17 2 Drug Testing ...... Policy Reform ...... 17 2 Schools ...... Prisons ...... 17 4 Women ...... Racial Justice ...... 17 5 Workplace ...... Raves ...... 18 6 Vehicle Searches ...... DPLP in the Media ...... 19 6 Drug Zones ...... DPLP Publications ...... 20 Government Benefits Policy . . . . .7 8 Harm Reduction ...... Funding ...... 21 Medical Marijuana ...... 9 Racial Justice ...... 9 Raves ...... 10 Religious Freedom ...... 11 Voting Rights ...... 12

i DPLP STAFF

Back row (L-R): Tania Galloni, Graham Boyd, Alicia Young, Gabriel Freiman Front row (L-R): Deborah Ahrens, Anne Leone, Irene Gutierrez, Fatema Gunja

Graham Boyd, Director Alicia Young, Staff Attorney Deborah Ahrens, Legal Fellow Fatema Gunja, Office Manager/Paralegal

The DPLP would like to thank the following interns for their hard work and support: Gabriel Bankier-Plotkin, Jordan Bass, Dugan Bliss, Cliff Bloomfield, Sumana Cooppan, Alexandra Cox, Martin de Santos, Gabriel Frieman, Tania Galloni, Irene Gutierrez, Mary Hahn, Mary Beth Hickcox-Howard, Ari Holtzblatt, Todd Kennedy, Anne Leone, Flora Lichtman, Daniel Low, Oana Marian, Julia Markovits, Celine Mizrahi, Shankar Narayan, Joanna Norland, Chrystiane Pereira, Homer Robinson, Shane Stansbury, Mary Taft- McPhee, Mateo Taussig-Rubbo, Olivia Wang, Amy Weber, Harry Williams

The DPLP would also like to thank our former staff attorney, Nelson Tebbe, for his hard work and dedication.

ii MISSION STATEMENT

“Graham Boyd and his colleagues at the ACLU Drug Policy Litigation Project are play- ing a pivotal role in the emerging movement with their combi- nation of sophisticated litigation strategies and savvy PR. Their string of victories in one court after another – on issues ranging from drug testing to medical marijuana to the rights of drug users and drug offenders – are helping to turn the tide in the courts and with the public.” – Ethan Nadelmann, Executive Director of the

“The ACLU’s Drug Policy Litigation Project has given the drug policy reform move- ment its first (and long-desired) nationwide and systematic litigation capacity.” – Ira Glasser, Former Executive Director of the ACLU

“[W]hen the First Amendment right of Free Speech is violated by the government in the name of the War on Drugs, and when the First Amendment violation is arguably not even helping in the War on Drugs, it is the duty of the Courts to enjoin the gov- ernment from violating the rights of innocent people.” – U.S. Federal Judge G. Thomas Porteous, Jr. in his ruling in McClure v. Ashcroft

Founded in January 1999, the ACLU Drug Policy Litigation Project (DPLP) conducts the only national litigation program addressing civil rights and civil liberties violations arising from the War on Drugs. Based in New Haven, CT with an office in New York City, the DPLP has litigated cases in federal courts dealing with drug testing, electronic music culture, government benefits policies, harm reduction, medical marijuana, racial justice, religious freedom, and voting rights. The DPLP also provides legal support to ACLU drug reform efforts at the local, state and national levels. The ACLU has been an outspoken critic of the War on Drugs since the Reagan administration renewed efforts to stamp out illicit drugs in the early 1980s. Despite decades of criminal prohibition, intensive law enforcement, and efforts to rid the country of illegal drugs, violent traffickers still endanger life in our cities, a steady stream of drug offenders still pours into our jails and prisons, and tons of cocaine, heroin and marijuana still cross our borders unimpeded. The ACLU opposes the criminal ; not only is prohibition a proven failure as a drug control strate- gy, but it subjects otherwise law-abiding citizens to arrest, prosecution and imprisonment for what they do in private. Moreover, African American and Latino people are disproportionately victimized by the War on Drugs, although they do not use or traffic in drugs more than other Americans do. The ACLU believes that unless they do harm to others, people should not be punished, even if they do harm to themselves. There are better ways to address drug use – ways that will ultimately lead to a healthier, freer and less crime-ridden society.

iii A MESSAGE FROM THE DIRECTOR

When we first began this project, I never imagined that, in three short years, our nation would see such broad interest in and support for reform of the United States’ misguided drug policies. State ballot victories on medical marijuana, sentencing reform, and forfeiture abuses reflect a growing rejection of current laws and the legislative gridlock that defends them. The public has begun to question the logic of the War on Drugs, and courts seem ever less willing to grant the government a drug-war exception to the Bill of Rights. For decades, a case involving drugs was almost certain to lead to new limitations on our freedoms. Our record in the courts – 10 victories and 0 losses – is reversing that trend, showing the public that the drug war- riors have abused their power and that our rights will not be held hostage by the government’s War on Drugs. Indeed, the ACLU Drug Policy Litigation Project (DPLP) was founded with precisely this vision of reforming our nation’s drug policies through a cohesive litigation strategy. Today, as I look back on what we have accomplished, I am proud of the impact we have already made on shaping the public discourse on drug policy. By successfully litigating cases on a broad range of issues, we have changed the nature of the debate. We have shown that the drug war is not just ineffective; it violates the most basic principles of democracy and freedom. As encouraged as I am by our successes so far, the War on Drugs remains a juggernaut. It has slipped the reins of metaphor to become a literal war with civilian casualties and constant attempts to subvert our civil liberties. This machinery of a prison system that has especially ensnared young African-American and Latino men must be stopped. To do so, we are committed to even more of a concentrated attack on the status quo. We need to break through the moral stigma and fear sur- rounding drugs that have given the government a blank check to invade our private lives. Our nation accommodates diverse views on drug use, but we must remain united in insisting that privacy, lib- erty, and free speech cannot be sacrificed to the War on Drugs. To this end, my goals for the future are straightforward: to expand our litigation capacity, to educate the public, and to build coalitions. Over the past 3 years, we have grown from 1 part-time lawyer to a full-time staff of 4 and dozens of interns. We have litigated cases in federal courts throughout the country and on a diverse array of issues, but our resources remain too few to con- front the many constitutional abuses perpetrated in the name of fighting drugs. As we expand, we are committed to increasing our public education efforts, of which this report is an important step. Through our website, special reports, publications, newsletters, and the press, we hope to alert the American people to the caustic effects of the War on Drugs and encourage them to join our fight. Finally, we realize that we cannot succeed by ourselves. We need to build even stronger relationships with other drug reform activists as well as civil rights organizations. Many challenges lie ahead. But with our strength, determination, and conviction, we are con- fident of our impending victories. We want to thank our courageous and dedicated clients, our col- leagues in the ACLU and state affiliates, our partners in other drug reform organizations, and our generous and steadfast supporters for all of their help and strength.

Graham Boyd iv Director, ACLU Drug Policy Litigation Project THE ASSAULT ON CIVIL LIBERTIES

& CIVIL RIGHTS THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS

Rights Under Attack The War on Drugs has corroded one of the most fundamental institutions of American democracy: the Bill of Rights. Basic freedoms and liberties enumerated, protected, and enshrined in the Bill of Rights have been sacrificed for the “higher cause” of a drug-free America. These include:

First Amendment: Freedoms of speech, association, expression, & religion Fourth Amendment: Protection from unreasonable search & seizure Fifth Amendment: Guarantee of due process of law Eight Amendment: Freedom from cruel and unusual punishment Fourteenth Amendment: Right of equal protection under the law Fifteenth Amendment: Guarantee of voting rights regardless of race or ethnicity

By using the United States Constitution as armor against the civil liberties and civil rights abuses that have arisen from the War on Drugs, the DPLP has fought to uphold and preserve the rights of all Americans.

Litigation In coordination with ACLU state affiliates, the DPLP has successfully litigated in the following areas:

CIVIL ASSET FORFEITURE involved Jacob King, an African-American, and Hector Herrera, a Latino, who were stopped for Despite the Fifth Amendment’s promise questioning by law enforcement officials at that no person “be deprived of . . . property, Omaha’s Eppley Airfield. Without being without due process of law,” police increasingly charged with drug-related crimes and despite seek to seize and sell property without any proof that their money was legally earned, both arrest, conviction, or due process. Under the men had their money sniffed by drug dogs and idea that property itself can be guilty, the gov- then confiscated by the police. The ACLU chal- ernment seeks to take your property, leaving lenged the timing of the seizure and asserted you to prove that the property in question has that the questioning of King and Herrera was no connection to a crime. racially motivated, that the amount of money they carried was not any indication of drug- USA v. $7,221 in US Currency; USA vs. $4,000 related activity and that the drug dog sniff test in US Currency was inadequate to show the money resulted Challenging civil lawsuits filed by the Drug from drug dealing. The government dismissed Enforcement Agency, the ACLU of Nebraska, both complaints after the ACLU’s motions were assisted by the DPLP, emerged victorious in filed and returned the entire amount seized to these two civil asset forfeiture cases. The cases King and Herrera.

1 • A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT

Lindsay Earls and Daniel James challenged Tecumseh High School’s drug testing policy. James said the policy “was like something out of 1984,” George Orwell’s frightening vision of a society where no one is safe from governmental surveillance. Photo by Jerry Laizure

DRUG TESTING pants in after school programs. The Supreme Court has accepted the case for review, signaling Schools that the Earls decision will establish a national standard for school drug testing. The Tecumseh More and more schools are testing students School Board in Oklahoma had instituted a pol- for drug use, even where the school has no record icy barring students in grades 7-12 from partic- of drug problems. The Fourth Amendment pro- ipating in any extracurricular activities, includ- tects students from needless privacy intrusions ing non-athletic activities, unless they consented like drug testing. Thus far, the courts have been to regular, suspicionless, and unannounced divided on the question of when and why schools urine analysis drug tests. Under the new school

DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION may test students for drugs. Laws vary from state policy, a refusal to be tested meant the student’s to state, in part because some state constitutions exclusion from prestigious extracurricular activ- provide more protection than others for students’ ities. The District Court upheld the school’s pol- privacy rights. icy, but a 2-1 majority of the Court of Appeals for the Tenth Circuit struck down the ruling. Earls v. Tecumseh School District The Supreme Court will hear the case in the The DPLP won a decision striking down spring of 2002. mandatory, suspicionless drug testing of partici- 2 THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS Joye et al. v. Hunterdon Central Regional employed at the high school. As a result of this Board of Education et al. ACLU victory, Maryland schools have stopped In a challenge brought by the ACLU of student drug testing and will now contact a stu- New Jersey with assistance from the DPLP on dent’s parents if there is concern about possible behalf of three area families, the Somerset drug use. County Superior Court blocked a local high school’s random drug testing policy. The policy Tannahill v. Lockney at Hunterdon Central Regional High School In a case affecting all students in a Texas was aimed at students who participated in ath- high school, the DPLP halted the first case of letics and extracurricular activities or parked mandatory, suspicionless drug testing of all stu- their cars at the high school. It was enacted dents throughout a school. Students who failed despite the fact that there was no evidence of a to comply with the Lockney School Board’s drug problem at the school. The ACLU lawsuit drug testing policy were presumed guilty of objected to the invasive and unnecessary drug using drugs, excluded from extracurricular testing and argued that the policy violated the activities and class assemblies, and subjected to privacy protection afforded to students by the mandatory counseling and detention. Larry NJ Constitution. Tannahill, who believed that the tests violated the constitutional rights of his 12 year old son, Talbot County Advocates for Student and Brady Tannahill, challenged this policy, and the Parental Rights v. Talbot County Board case was brought to the Texas District Court on of Education the grounds that it violated the Fourth Assisted by the DPLP, the ACLU of Amendment. The Court struck down the Maryland won the first legal challenge to stu- mandatory drug testing policy. dent drug testing in the state of Maryland in this case. In May 2000, on behalf of a group of Easton High School students and their parents, the ACLU challenged the Talbot County school system’s requirement that students undergo targeted drug testing, on threat of sus- pension or even expulsion, based solely upon allegations that the students attended a private, off-campus social event where drugs were rumored to have been used. The ACLU also questioned the lack of confidentiality and reli- Larry Tannahill refused to have his sons Coby, left, and Brady drug tested. Photo by Reid Horn ability in drug testing methods 3 Weber v. Oakridge School District denied an opportunity to join the Grand Blanc On behalf of Ginelle Weber, an Oakridge wrestling team in 1999 because he and his par- High School sophomore, and her parents, the ents refused to sign a drug testing authoriza- ACLU of Oregon and the DPLP challenged tion form. The ACLU is currently waiting to go Oakridge School District’s drug-testing program to trial. for athletes. In February 2001, the Lane County Circuit Court ruled that the part of the program York v. Wahkiakum School District, No. 200 requiring disclosure of prescription drug infor- et al. mation violated students’ privacy rights. The In the first legal action of its kind in this ACLU called the ruling a “hollow victory” since state, the ACLU of aided by the the Court also ruled that random, suspicionless DPLP filed a lawsuit against Wahkiakum School drug-testing of athletes was constitutional. The District’s recently adopted policy of suspicion- ACLU is currently appealing the decision. less urine testing for students who participate in extracurricular activities. The policy was adopt- Whipple, et al. v. Lordsburg Municipal ed without any convincing evidence that there Schools Board of Education, et al. was a significant drug problem among students Assisted by the DPLP, the ACLU of New or that disciplinary problems had increased as a

• A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT Mexico successfully settled a lawsuit in federal result of student drug use. The lawsuit argued court challenging drug searches of students in that this policy violated the privacy clause of the grades 5 through 12 of the Lordsburg Washington Constitution. The Washington Municipal Schools. During the random, blanket Court of Appeals temporarily put a halt to drug-dog sniffs of the classrooms, also known Wahkiakum School District’s drug-testing poli- as “lockdowns” or “sweeps,” the students were cy, reversing the ruling by a lower court judge searched by school officials if a dog was alerted who had denied the ACLU’s request for a pre- to them. The ACLU argued that this policy vio- liminary injunction against the urine testing. lated the students’ rights under the Fourth The ACLU is awaiting oral argument before the Amendment. Before the scheduled hearing, the state Court of Appeals. Lordsburg School Board agreed to permanently stop all drug dog sniffs of students. Women White v. Grand Blanc School District In the past several years, states have With help from the DPLP, the ACLU of increasingly intruded into the lives of pregnant Michigan filed a lawsuit in a Michigan state women, policing their conduct in the name of

DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION court arguing that Grand Blanc High School’s protecting fetuses. Pregnant women have been drug testing policy was a violation of the state forced to undergo unwanted cesareans; they Constitution’s protection against unreasonable have been ordered to have their cervixes sewn searches and seizures. Under the program, ath- up to prevent miscarriage; and they have been letes are required to provide a urine sample on incarcerated for consuming drugs or alcohol. In demand for drug testing without any suspicion many of these cases, the invasive state actions that they are using drugs. The lawsuit was filed have been rescinded by higher officials or reject- on behalf of Micah White, a student who was ed by the courts. Unfortunately, many of these

4 THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS decisions came too late to prevent unwarranted not even suspected of using drugs, to pass a suffering and to protect women from being urine test to get a new job or to keep the one deprived of their rights. they have.

Ferguson v. City of Charleston Baron v. City of Hollywood The Supreme Court’s 6-3 decision in this The ACLU of Florida successfully litigated case safeguards women from warrantless, suspi- a case striking down a City of Hollywood poli- cionless searches simply because they are preg- cy requiring all new city employees to undergo nant. A South Carolina public hospital’s policy urine screening for drugs. The U.S. District subjected pregnant women to surreptitious drug Court ruled unconstitutional the city’s Drug and screens of their urine, the results of which were Alcohol Abuse Policy, citing the policy’s invasive turned over to law enforcement authorities. and overly broad provisions as violations of the Fourth and Fourteenth Amendments. The Pregnant women have been ACLU challenged the law on behalf of Thomas Baron, an accountant whose job offer from the forced to undergo unwant- city was rescinded after he refused to take a ed cesareans; they have urine test. been ordered to have their Robinson v. City of cervixes sewn up to prevent Assisted by the DPLP, the ACLU of miscarriage; and they have Washington fruitfully challenged a City of Seattle policy requiring urine testing of appli- been incarcerated for con- cants for employment. The ACLU challenged suming drugs and alcohol. the City’s program on behalf of itself and eight Seattle residents and taxpayers who objected to Under the program, 30 women were arrested, it as an unconstitutional expenditure of public 29 of whom were African-American. The ACLU funds. The Washington Court of Appeals unan- submitted a friend-of-the-court brief arguing imously found that the program violated the that women do not forfeit their constitutional state constitution, citing its strong protections rights when they become pregnant. The Court of personal privacy. The Court held that suspi- dismissed the state’s argument that drug testing cionless urine testing of government workers is pregnant women falls under the “special needs” permissible only in very limited situations, such exception of the Fourth Amendment. as for jobs in which drug use might pose a threat to public safety.

Workplace Timm v. Reitz Driven by an industry-led panic that drug The ACLU of and the DPLP use is common, even epidemic, in America’s challenged a Colorado law that requires all workforce, employers today require tens of mil- state-licensed participants in the greyhound rac- lions of American workers, most of whom are ing industry to undergo drug testing. State offi- cials demanded the urine samples on a random

5 basis, without any suspicion that the individuals drugs, tomorrow it’s deadbeat parents, and the tested had been using drugs. The ACLU argued next day it’s parking fines. Where does it end?” that random drug tests were only permissible when the government could demonstrate an City of Indianapolis v. Edmond overriding special need. Since need could not be In a 6-3 decision, the Supreme Court ruled shown in this case, the drug testing policy was unconstitutional the Indiana state police prac- unconstitutional. The Denver District Court tice of patrolling roadblocks with drug-sniffing granted summary judgment for the defendants, dogs. At the Indiana roadblocks, police officers but the Colorado Court of Appeals reversed, checked license and vehicle registrations, finding that the state had not demonstrated a motorists were examined for any signs of drug sufficient need for the drug testing program. use, and a drug-sniffing dog walked around the outside of each stopped car. This decision, in a case brought by the ACLU of Indiana, marks Vehicle Searches the third recent ruling by the Justices to limit the search tactics used by the government. In the The police practice of stopping and search- majority opinion, Justice Sandra Day O’Connor ing cars for signs of illegal activity is largely said that the reasoning behind the Indianapolis fueled by the War on Drugs. Kenneth Falk, who • A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT roadblocks could not justify the use of uncon- argued on behalf of the ACLU in the case below, stitutional methods by the police. “The issue here is not whether catching drug DRUG ZONES offenders is important, In an effort to deter and curb drug use, some but whether our basic states have passed laws limiting the freedom of constitutional rights can be movement of individuals suspected and/or con- suspended in pursuit of victed of a drug crime. People can be excluded from whole sections of the city, denied the right such a goal. Today it’s to see relatives, go to work, or even visit their drugs, tomorrow it’s dead- lawyer, solely on the basis of police suspicion. beat parents, and the next NJ Drug Offender Restraining Order Act day it’s parking fines. (DORA) DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION Where does it end?” The DPLP is preparing a legal challenge to New Jersey’s Drug Offender Restraining Order -Kenneth Falk Act (DORA). Under this law, judges bar anyone accused of certain drug crimes from the place contends that “the issue here is not whether where police say the crime took place for up to catching drug traffickers is important, but two years. It applies to children as well as adults whether our basic constitutional rights can be and has been enforced to bar people from their suspended in pursuit of such a goal. Today it’s own homes. Anyone violating the restraining 6 THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS order will be arrested again and charged with a nature and did not violate the double jeopardy separate crime, even if there was no criminal clause. In Frederick v. City of Portland, the state behavior. Because this limits the freedom of Court of Appeals dismissed the ACLU’s argu- movement of the accused before they have been ment that the city’s post-conviction exclusion found guilty of any crime, the DPLP is concerned order is an extra-judicial punishment given in about the due process implications of this law. addition to sentences imposed by the court.

State v. Burnett The Ohio Supreme Court declared invalid GOVERNMENT BENEFITS a Cincinnati law that authorized law enforce- POLICY ment agents to banish citizens from certain neighborhoods if they had been convicted of One of the groups the drug war has most drug offenses. The Court held that the ordi- affected has been the poor. In return for govern- nance, Chapter 755 of the Cincinnati Municipal ment benefits such as public housing and wel- Code, violated the right to interstate travel fare, the government has attempted to strip under the United States Constitution and violat- them of their constitutional rights. ed the Ohio Constitution by allowing the city to impose a criminal sentence unauthorized under HUD v. Rucker state law. The ACLU of Ohio, which succeeded This case before the Supreme Court is at the in having the law declared unconstitutional in center of a national debate over the fairness of an earlier federal case, had filed a friend-of-the- public housing evictions. The Court will have to court brief in this case. The DPLP is considering decide whether Congress intended to evict “inno- bringing similar cases elsewhere. cent” tenants from public housing whenever someone in their household engages in drug- City Drug Zones in Oregon related activity, even if that activity occurs with- The ACLU of Oregon is preparing a legal out their knowledge or consent. If this was the challenge to the creation of a drug-free zone in intent of Congress, the Court will then have to the city of Cascade Locks that encompasses the decide the constitutionality of such a law. The entire city limits. The new ordinance allows law Court of Appeals for the Ninth Circuit sustained enforcement officers to issue a 90-day exclusion a statutory challenge to this law passed by from public streets, sidewalks, and other public Congress in 1988. The DPLP, in conjunction with ways within the zone to a person who is arrest- the ACLU of Northern California, has filed a ed for a drug-related offense within the zone. friend-of-the-court brief in the Supreme Court. Cascade Locks modeled its law after the city of The DPLP brief outlines the constitutional infir- Portland’s drug-free and prostitution-free zones. mities of the lease provisions, urging the Court to The ACLU is involved in two separate chal- find that they violate tenants’ due process rights. lenges to Portland’s exclusion ordinance. In Oregon v. Lhasawa, the state Supreme Court Marchwinski v. Howard will decide if the Court of Appeals in a related The DPLP won a major victory against the case, James v. Oregon, was correct in ruling that stigmatization of poverty by securing a federal exclusion under the ordinance was remedial in injunction halting the mandatory and suspicion- 7 less drug testing of welfare and Wisconsin. Each of these 13 recipients in Michigan. Refusal states has passed laws exempt- to submit to random drug test- ing program participants from ing or failure to comply with a criminal liability for carrying mandatory “substance abuse hypodermic syringes. According treatment plan” would have to AIDS Action, a leading advo- meant the denial of income cacy group, there are currently support and other benefits 140 needle exchange programs under the state’s “Family operating in 39 states, the Independence Assist-ance” pro- District of Columbia and the gram for families with depend- territories (including the 13 ent children. The DPLP argued states where the programs are that the policy constituted an legal). unreasonable search in viola- tion of the Fourth Amendment Doe v. Bridgeport and violated an individual’s In a national test case right to privacy. Additionally, challenging the illegal harass-

• A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT the DPLP asserted that the ment and arrest of partici- Michigan welfare policy pants in a Needle Exchange removed benefits from the chil- Program, a federal court in dren and mothers who needed Connecticut ruled that police them most and neglected to may not interfere with a public provide adequate counseling health initiative that effectively and treatment programs for combats disease through edu- substance abuse for people who cation and prevention. The tested positive. Bridgeport Police Department had been arresting, harassing The ACLU’s classified advertise- and confiscating the syringes ment in . HARM REDUCTION of participants in the Bridgeport Syringe Exchange According to the Centers for Disease Program, a program which safely discards pre- Control, three out of four AIDS cases among viously used, potentially infectious syringes in women are due to injection drug use or hetero- order to reduce the spread of HIV and other DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION sexual contact with someone infected with HIV blood transmitted diseases. The program also through injection drug use, and over 75 percent of sought to improve the participants’ access to new infections in children result from the conse- medical services and treatment. The DPLP filed quences of injection drug use. State-established a class action lawsuit on behalf of two partici- Needle Exchange programs currently operate in pants who had been arrested and harassed by California, Colorado, Connecticut, Illinois, the Bridgeport police. A temporary restraining Maryland, Massachusetts, Minnesota, New York, order was granted by the District Court in Ohio, Pennsylvania, Rhode Island, Washington December 2000, and on January 2001, the 8 THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS Court issued a permanent injunction prohibit- 1996, and which made it legal for patients to ing the Bridgeport Police Department from grow and possess marijuana for medical use harassing the participants of the program. when “recommended” by a doctor. Federal offi- cials responded by pledging to punish doctors Massachusetts v. Landry who recommended medical marijuana. The Massachusetts has also legislated needle threats included revocation of the doctor’s exchange as a public health initiative by estab- prescription drug license, loss of Medicare/ lishing pilot programs in certain towns. Medicaid provider status, and criminal prose- However, local police forces have been acting cution. The DPLP is preparing for oral argu- contrary to the legal, statewide initiative by ment before the Court of Appeals for the arresting needle exchange participants once Ninth Circuit. they leave the town where the program is locat- ed. The DPLP will challenge this practice on U.S.A. v. Oakland Buyers’ behalf of a program participant who was Cooperative and Jeffrey Jones arrested for possessing safe injection equipment In a case that arose in response to after having legally obtained it from a state- California voters’ approval of Proposition 215, sponsored program. the Supreme Court made a two-part decision concerning medical marijuana. Disappointing proponents of medical marijuana, the Court MEDICAL MARIJUANA ruled against any medical marijuana exception under federal law. The ruling hinged on a find- For centuries, marijuana has been used by ing by Congress that marijuana has no medical doctors and patients all over the world. It has use despite the overwhelming scientific evidence been scientifically proven to reduce nausea and to the contrary. The Justices, however, did agree eye pressure, increase appetite, and control mus- with the DPLP’s argument in its friend-of-the- cle spasms, seizures, and chronic pain. The fed- court brief that the scope of federal intervention eral government, however, is going to extraordi- in states that have passed medical marijuana ini- nary lengths to prevent patients from having tiatives should be limited. The Court ruled that access to medical marijuana, even when a state federal judges have the discretion to choose not legalizes its use. to shut down medical marijuana distribution clubs that operate in these states. This ruling Conant v. McCaffrey could provide some protection to the Oakland In a class-action lawsuit brought by the Cannabis Buyers’ Club and other institutions DPLP and the ACLU of Northern California, a like it that are sources for patients in need of California District Court issued a permanent medical marijuana. injunction protecting physicians who discuss or recommend marijuana to patients from harass- ment and threats by the federal government. RACIAL JUSTICE The challenged federal policy was issued in response to Proposition 215, which was “Racial profiling” occurs when the police approved by California voters in November target someone for investigation on the basis of 9 • A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT Ravers at the State Palace Theatre in New Orleans. “[I]n an effort to stop drugs, the government decided to take away the way we dance and the way we dress,” said Clayton Smith, one of the plaintiff’s in McClure v. Ashcroft. Photo by Cheryl Gerber

that person’s race, national origin, or ethnicity. the word of an unreliable informant who had Examples of profiling are the use of race to agreed to implicate targeted individuals in drug determine which drivers to stop for minor traf- transactions. Both cases highlighted the fic violations (“driving while black”) and the unchecked power of the state’s regional nar- use of race to determine which motorists or cotics task forces and their reliance on racial pedestrians to search for contraband. profiling. The ACLU argued that the drug busts in Tulia and Hearne, as well as those in Tulia/Hearne Racially Targeted Drug Sweeps at least six other Texas cities, violated the In conjunction with the NAACP, the Fourth, Eight, and Fourteenth Amendments of ACLU of Texas and the DPLP filed complaints the U.S. Constitution and the Texas Equal with the United States Department of Justice Rights Amendment. charging racial discrimination and prosecutor- DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION ial misconduct in connection with mass arrests of black residents in the Texas towns of Tulia RAVES and Hearne. In Tulia, half of the adult male African-American population was arrested on Raves are all-night dance parties oriented drug charges solely on the testimony of under- around electronic music culture that combine cover officer Tom Coleman in July 1999. In performance elements of a concert and social ele- November 2000, 28 African-Americans of ments of a party. In December 1999, the govern- Hearne were arrested in a drug sweep based on 10 THE ASSAULT ON CIVIL LIBERTIES & CIVIL RIGHTS ment launched its “Club Drug Campaign,” aim- constitutional rights. The United States District ing to shut down events such as raves because of Court ruled against the government and granted their claimed link to drugs like ecstasy (MDMA). a permanent injunction in February 2002.

U.S. v. Brunet; McClure v. Ashcroft In its ongoing attempt to paralyze electron- RELIGIOUS FREEDOM ic music culture, the government for the first time used a federal “crack house” law to prose- In the 1988 case Smith v. Oregon, the cute organizers of raves. The 1986 law, passed Supreme Court dismissed the longstanding rules by Congress to combat crack cocaine, was protecting religious freedom, requiring instead designed to punish the owners or operators of that all religious practices must now yield to houses used for the manufacture, storage, distri- laws of general application, even if the law has bution or use of illegal drugs. The government’s a decimating effect on the religion. Congress, in application of this law to electronic music cul- response, voted unanimously to restore religious ture targeted Donnie Estopinal, a New Orleans freedoms under the Religious Freedom music promoter, and Robert Brunet, a concert Restoration Act. Not to be outdone, the hall manager, who faced up to 20 years in Supreme Court expanded the purview of its prison and $500,000 in fines for staging a rave. decision to encompass all religions in an opinion The DPLP assisted in drafting a constitutional rejecting a Catholic church’s challenge to local argument against the prosecutions, resulting in zoning laws that threatened its existence. A con- a plea deal that eliminated all prison time for flict between Congress and the Supreme Court had outgrown peyote and Native American dis- putes to threaten every religion. The federal prosecutors insisted that the State Guam v. Guerrero Palace Theatre ban masks, In a case testing federal protections for reli- gious freedom, the DPLP represented Ras Iyah glow items, pacifiers, and Ben Makhane, who was arrested as he returned vapor rub, which are to Guam from Hawaii with marijuana that he used by performers and intended to use in his Rastafarian religious prac- tice. The DPLP argued that his right to religious participants at raves. liberty protected him from criminal prosecution. The Guam Supreme Court ruled in favor of Mr. Guerrero and held that the importation of mari- the defendants. The federal prosecutors insisted, juana for religious purposes was protected by the however that the State Palace Theatre ban Guam Organic Act. The case is currently under masks, glow items, pacifiers, and vapor rub, consideration at the Court of Appeals for the which are used by performers and participants Ninth Circuit. This is a test case for both federal- at raves. In response to that plea bargain, the ism and religious freedom. It raises the important DPLP filed a lawsuit arguing that the ban vio- issue a territorial court’s ability to interpret its lated the concert attendees’ and performers’ constitution’s First Amendment religious freedom

11 provision without federal interference. It also attempting to block D.C. from tallying the addresses the question of whether the Religious results of a ballot measure on medical marijua- Freedom Restoration Act (RFRA) is constitution- na. In 1998, the District of Columbia had placed al as applied to federal entities, such as Guam, Initiative 59 on its ballot. The initiative pro- Puerto Rico, the Virgin Islands, and the District posed to allow use of marijuana by seriously ill of Columbia. patients for medical purposes with a doctor’s recommendation. The result of the ballot, how- ever, was not tallied or released because VOTING RIGHTS Congress had passed legislation forbidding the Assembling peaceably at the voting booth District from spending any funds to conduct the is a waning American tradition these days – initiative. The DPLP argued that this measure, in part because the drug war is dangerously the Barr Amendment, violated the First creating a growing population of constitution- Amendment. The District Court agreed that al outcasts. making public the results of an election consti- tutes “political speech” at the core of the First Turner v. District of Columbia Board of Amendment, automatically leading to strict judi- Elections and Ethics cial scrutiny of the Barr Amendment. The results

• A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT In a case upholding the voting rights of the revealed that, as in all of the other states with District of Columbia electorate, a federal court similar initiatives, Initiative 59 was overwhelm- ruled that Congress had acted improperly in ingly approved by a vote of 69-31 percent. DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION

12 ULCPLC EDUCATION PUBLIC POLICY & PUBLIC POLICY & EDUCATION DPLP Initiatives Hand in hand with litigation comes an effort to educate: one of the DPLP’s goals is to increase communities’ awareness of the degree to which drug laws and policies violate their constitutionally protected rights. The DPLP also advises ACLU affiliates, state legislatures and non-profit organiza- tions on drug policy reform, legislation and litigation.

CIVIL ASSET FORFEITURE asset forfeiture through an advertisement cam- paign that asks, “Who can you call when the Civil forfeiture of property prior to convic- police are the ones robbing you?” tion has been a popular tactic in the War on The DPLP also worked on reforming asset Drugs. The DPLP believes that all current civil forfeiture legislation at the state and federal lev- forfeiture schemes inherently violate fundamen- els. Utah and Oregon were the first states to tal constitutional rights, including the right not have ballot initiatives addressing forfeiture to be deprived of property without due process abuses. Passed in 2000, these measures restored of law and the right to be free from punishment the rights of property owners to be proven that is disproportionate to the offense. guilty before the state could confiscate their Accordingly, the DPLP launched an attack on property. A reform bill in Missouri ensured that police departments deposited seized assets into a public education fund. Washington state passed E.S. House Bill 1995, putting the burden of proof on the state to demonstrate that the seized property was associated with drugs. In 1999, Congress adopted a measure pushed by Representative Hyde that somewhat reined in federal asset forfeiture laws.

DRUG EDUCATION

The DPLP believes that drug education programs that follow the Drug Abuse Resistance Education (DARE) model are inef- fective and expensive and that alternative meth- ods of teaching are better at educating students about drug use and abuse. The DPLP supports programs that are age-specific and in which ACLU advertisement that ran in The New York Times, The New Yorker, and other national educators talk honestly about how drugs affect publications. the body, means of ‘harm reduction,’ and the

13 • A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT

The ACLU’s “Get Your Vote Back” campaign in NJ and several other states provides detailed instructions on regaining voting rights for ex-felons.

legal consequences of drug use. Accordingly, the professionals, urging them to consider less DPLP applauds Salt Lake City’s decision to intrusive alternatives to urine testing as a condi- replace DARE with programs that take a more tion of employment. The DPLP has also been at realistic approach to drug education. the forefront of the fight to stop unconstitution- al drug testing of students. Our web feature on this topic has been designed to raise awareness DRUG TESTING about the issues and possible courses of actions for concerned parties. Drug testing has increasingly become a

DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION reality for adults and children alike. The DPLP strongly opposes this invasion of our bodies and FELONY this violation of our fundamental right to priva- DISENFRANCHISEMENT cy. Our special report, Drug Testing: A Bad Investment, analyzed ten years of research and Yet another consequence of the War on empirical evidence finding that drug testing in Drugs has been the growing number of the workplace is ineffective. The report was sent Americans, a disproportionate number of to CEOs, union officials, and human resources minorities, who are convicted of nonviolent

14 ULCPLC EDUCATION PUBLIC POLICY & drug felonies and lose their right to vote. In HIGHER EDUCATION ACT most states, an individual who is convicted of a felony loses his or her right to vote. In some The DPLP opposes the Drug-Free Student states, that right can never be regained, but in Aid Provision of the Higher Education Act others, a person can vote again after serving his (HEA), which bars federal financial aid for stu- or her prison term. However, reclaiming the dents convicted of any drug offense. Although right to vote requires fulfilling bureaucratic the bill’s author, Representative Mark Souder, requirements that some ex-offenders may find R-Ind., intended the ban to only target students intimidating and burdensome. As a result of who commit a drug crime while receiving aid, felony disenfranchisement laws, 14% of the government is denying aid to people with African-Americans, as much as 30% in some previous convictions. Considering that approxi- states, are not allowed to vote, and in ten states, mately 10 million students apply for federal the disenfranchisement is permanent. financial aid each year and that 27% of all In response to these harsh realities, the Americans aged 18 to 25 have used illegal drugs DPLP has created the “Get Your Vote Back” in the past year according to government esti- project. This provides ACLU affiliates in target- mates, this new law has the potential to affect ed states with technical assistance and materials millions of students. The DPLP is especially con- to conduct outreach to ex-offenders in order to cerned with the repercussions this type of legis- assist them in reclaiming their voting rights. lation will have on low and middle-income stu- ACLU affiliates, in turn, are organizing coali- dents and minorities. tions to help distribute state-specific packets The DPLP supports legislation introduced that instruct ex-offenders on the steps they can by Representative Barney Franks, D-Mass., that take to reclaim their right to vote. restores fairness in granting financial aid. The DPLP has also launched “Injustice 101,” a web- based campaign educating students about the HARM REDUCTION HEA and urging them to take action. To reach even more students, the DPLP sent letters to Many deaths from AIDS and other blood- hundreds of college financial aid offices asking borne diseases can be prevented by the use of them to directly contact their students affected sterile injection equipment. The DPLP defends by this legislation. Additionally, the DPLP has an individual’s right to possess drug equipment been working closely with ACLU chapters such as clean needles and syringes. Many law across college campuses to take on this initiative enforcement agencies, however, have violated and fight for repeal. this right by arresting participants in Needle Exchange and Clean Syringe Programs. The DPLP, with advocates in California, Illinois, MEDICAL MARIJUANA Minnesota, Texas, and several other states, is working to protect an individual’s right to pos- In 1995, an ACLU poll revealed that 79% sess safe injection equipment. of the public thought it “would be a good idea to legalize marijuana to relieve pain and for

15 recommendation, without state penalties. Similar initiatives have also been passed with support from the ACLU in Alaska, Arizona, Colorado, Maine, and Nevada. In Oregon and Washington, the DPLP helped shape the regulatory and medical guidelines for medical marijuana. In Hawaii, the first state to enact a bill that removes state-level criminal penalties for seri- ously ill people who use medical mar- ijuana with their doctors’ approval, the DPLP provided legal arguments to support the right of states to opt out of the federal criminal system and remove criminal penalties for medical marijuana users. The DPLP also led

• A REPORT OF ACTIVITIES 1999 – 2001 • A REPORT seminars with medical leaders and law enforcement officers in states that have recently passed medical marijuana laws.

METHADONE

The DPLP opposes the attempt to single out methadone from all other forms of medical care and erect heightened barriers to treat-

ACLU advertisement that ran in The New York Times. ment for individuals in need of this medication by imposing increased other medical uses if prescribed by a doctor.” zoning restrictions for state-certified Since then, the ACLU, which has opposed the methadone providers. The DPLP also objects DRUG POLICY LITIGATION PROJECT DRUG POLICY LITIGATION prohibition of marijuana since 1968, has been to attempts to limit access to methadone main- fighting to legalize medical marijuana across tenance treatment. the country. The DPLP applauds steps taken by the In California, the DPLP’s legal battles Vermont Legislature to authorize clinics to dis- upheld a voters’ initiative, Proposition 215, pense methadone to heroin addicts. Plans are which allows seriously ill patients to grow and gradually moving ahead to establish methadone use marijuana for pain relief, with a doctor’s treatment plans in hospitals. The DPLP has also worked closely with physicians and treatment 16 ULCPLC EDUCATION PUBLIC POLICY & providers in several states seeking to expand the Arizona law allowing first and second time drug availability of methadone. offenders to accept treatment rather than jail time, which has been a resounding success. The sentencing reform saved the state $2.5 million in PAIN the first year that it was implemented utilized, and 78% of the participants in the treatment In the face of recent media attention program later tested drug free. covering abuse of prescribed pain medications such as OxyContin and Dilaudid, the DPLP strongly objects to the increased regulation of PRISONS these drugs, which would prevent patients suf- fering from chronic illnesses from alleviating The DPLP opposes the use of unreasonable their pain. In the past year, states such as Maine and unreliable searches in prisons. For example, and Florida have been quick to impose regula- high-tech ion scanners have been installed in tions on the distribution of OxyContin, specifi- Pennsylvania, California, Missouri, Rhode cally to Medicaid patients. A bill still floating in Island and Iowa state prisons and federal pris- the Maine legislature, L.D. 687, proposes a cen- ons nationwide. Visitors found to be contami- tralized database for Schedule II prescriptions nated by even a microscopic particle of a con- dispensed by pharmacies in the state. Further trolled substance are prevented from entering regulations, such as the required fingerprinting the prisons. Unfortunately, these machines are of those being treated with OxyContin, have so finely calibrated that they detect innocent also been proposed. The DPLP has been work- exposures to controlled substances. The DPLP is ing in these states to protect the ability of those working with prisons around the nation to pre- suffering from chronic pain to have access to vent the use of these machines, which have necessary medications. unfairly prevented innocent relatives from visit- ing their loved ones, or of any machines that demonstrate exposure to controlled substances POLICY REFORM instead of possession of controlled substances.

The DPLP supports the drug policy reforms advocated by New Mexico Governor RACIAL JUSTICE Gary Johnson, who has received nationwide attention for his crusade against the current sys- Fighting for racial justice has been one of tem. A number of proposals have been made, the DPLP’s highest priorities in challenging the including expanding the current medical mari- War on Drugs. Accordingly, the ACLU launched juana law, reforming civil asset forfeiture, sen- the Campaign Against Racial Profiling to edu- tencing reform that allows the option of treat- cate the public and enlist citizens in the fight to ment instead of incarceration, and changing end racial profiling in America. The DPLP sup- possession of one ounce or less of marijuana to ported and lobbied for legislation addressing a civil violation from a criminal offense. racial profiling in states such as California, Reforms proposed in other states include an Florida, Kansas, Maryland, New Jersey,

17 18 DRUG POLICY LITIGATION PROJECT • A REPORT OF ACTIVITIES 1999 – 2001 South Africain2001. Conference AgainstRacismheldinDurban, the UnitedStatesdelegationtoWorld drug policyreformadvocateswhowerepartof in theWar onDrugs,anad-hoccoalitionof ed intheCampaigntoEndRaceDiscrimination targeted drugsweeps.TheDPLPalsoparticipat- by theACLUofTexas inresponse toracially “Tulia Proposals,”aseriesofmeasures drafted W Carolina, Tennessee, Texas, Utahand Oklahoma, Pennsylvania,RhodeIsland,South and ACLU advertisementthatranin ashington. Texas, forinstance, passed the h NewYorker The . h e okTimes The NewYork harassment bylocal,state,andfederalofficials. regularly foradviceandassistanceinthefaceof Palace TheaterpartyinNew Orleans. Ravers wavingglowsticksat arecent State RAVES ers aroundthenationcontactDPLP Summit. DJs,promoters,andvenueown- Billboard MagazineDanceMusic as theWinter MusicConferenceandthe DPLP hasalsoparticipatedineventssuch ment ontheirmusicandculture.The dance communityagainstthisencroach- and mobilizemembersoftheelectronic Education Fund(EM:DEF)toeducate ate theElectronicMusicDefenseand Lindesmith Center, theDPLPhelpedcre- using drugs.Inconjunctionwiththe the 1920sjustbecausesomepeoplewere rock concertsinthe1960sorjazzclubs culture istantamounttoshuttingdown government’s concentratedattackonrave as ecstasy. TheDPLPbelievesthatthe name ofpreventinguseclubdrugssuch of electronicmusicandravecultureinthe of fightingthegovernment’s persecution The DPLPhasbeenattheforefront Photo by Gary Blitz Photo byGary DPLP IN THE MEDIA 19 The widespread media coverage received by the DPLP in our litigation and advocacy efforts has in our litigation and advocacy efforts coverage received by the DPLP The widespread media been key to building public awareness on drug policy issues. Articles on cases brought by the DPLP issues. Articles on cases brought by public awareness on drug policy been key to building Times, Newsweek, the New York the Los Angeles Times, Magazine, Harper’s have appeared in the Washington Report, U.S. News and World USA Today, Time, People, Teen People, Rolling Stone, and other national and local media. on CNN and all other networks, Post, news broadcasts DPLP in the Media DPLP 20 DRUG POLICY LITIGATION PROJECT • A REPORT OF ACTIVITIES 1999 – 2001 “This isYour BillofRights,onDrugs” byGrahamBoydandJackHittin Dr Conference oftheACLU. “American DrugLaws:TheNewJimCrow,” speechbyIraGlasseratthe1999Biennial “Against DrugProhibition,”ACLUpositionpaper. The ACLUcurrently hasthefollowingpublicationsincirculation relating todrugpolicy: DPLP Publications July/August 2001. “The DrugWar istheNewJimCrow”byGrahamBoydin ug T esting: ABadInvestment , ACLUSpecialReport,September1999. NACLA ReportontheAmericas, Harper’s, December 1999. FUNDING 21 FUNDING accept no government support and depend entirely on private contributions from individ- support and depend entirely on accept no government

We The DPLP is funded by foundations, public interest groups and individuals. The Drug Policy by foundations, public interest groups The DPLP is funded Alliance, a project of the Open Society Institute, generously provided the American Civil Liberties provided the American Civil of the Open Society Institute, generously Alliance, a project the project growing. The Educational with support to initiate and keep Union Foundation We to the DPLP. have also generously contributed Foundation and the Tides Foundation of America their ongoing support. gratitude to these organizations for extend our sincerest uals and foundations. Contributions we receive support national and local work and are tax national and local work and Contributions we receive support uals and foundations. would like to make a donation or to receive assistance in plan- deductible. Please contact us if you tax and financial benefits. ning future donations that provide special Drug Policy Litigation Project 85 Willow Street New Haven, CT 06511 tel: 203 787-4188 fax: 203 787-4199 www.aclu.org/drugpolicy