Justice John Paul Stevens, who announced his resignation from the Supreme Court after 34 years, is at 90 old enough to remember Prohibition, and he's among the few members of the judiciary to liken our modern "war on drugs" to the failed effort, between 1919 and 1933, to keep Americans from drinking liquor.
It was in his dissent in a student freedom of speech case from 2007 — known as the "Bong Hits 4 Jesus" case — that Justice Stevens wondered why more Americans do not openly question the war on drugs, and he compared our silence to those who secretly disagreed with the constitutional ban on booze way back when.
"Just as Prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies," Justice Stevens wrote, "today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several states that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs."
He also wrote: "The current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs."
I suppose a segment of American society believes people who smoke pot or who become addicted to heroin or cocaine are of low character — weak, lazy, foolish, stupid, godless. The moralists are probably convinced that we should keep arresting our way out of drug addiction until the addicts learn a lesson.
But all major public opinion surveys in recent years indicate that a growing majority of Americans see the war on drugs as a failure and that drug addiction should be treated as a medical, not criminal, problem.
The greatest influence in the creation and prosecution of the war on drugs has been politics — the worst kind of exploitative politics.
The war on drugs, so declared by Ronald Reagan nearly 30 years ago, has been supported by calculating politicians of both parties eager to firm up their "tough on crime" muscle. They have spent billions in taxpayer dollars for law enforcement and new prisons, and they have legislated mandatory minimums in criminal sentencing that have filled our prisons to world-record capacity.
Judges have had a hand in this, too. All across the land, courts have been willing to expand police powers in the cause — none more, of course, than the Supreme Court.
Early on, in one of several "war on drugs" cases to reach the high court, Justice Stevens represented one of the few voices to question the aggressive pursuit of drug users and drug dealers — and the willingness of the court to spare the police from inconveniences, such as the need to get a warrant before conducting certain kinds of searches.
In California v. Acevedo, from 1991, the majority upheld such a search of a bag in the trunk of a car of a man suspected of transporting marijuana. Justice Stevens believed the court's decision eroded Fourth Amendment protections against unlawful search and seizure.
Since the early 1980s and the start of the war on drugs, he noted in his dissent, "the [Supreme Court] has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure.
"In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive's fight against crime."
No argument there.
As a direct result of the war on drugs, the national prison population from the time of Justice Stevens' appointment in 1975 to the present has grown from about 300,000 to about 2.4 million — with millions more on parole or probation — and counting.
Dan Rodricks' column appears Thursdays and Sundays in print and online, and Tuesdays online-only. He is host of the Midday talk show on WYPR-FM. E-mail: email@example.com.