From: insthemp@igc.org (Institute for Hemp)
Newsgroups: alt.drugs
Subject: {Crack Law Unconstitutional in MN
Date: 23 Jul 92 01:22:00 GMT
Nf-ID: #N:cdp:1301300177:000:5186
Nf-From: cdp.UUCP!insthemp    Jul 22 18:22:00 1992


Decision that negated drug law exposed state Supreme CourtUs
activist streak St. Paul Pioneer Press D. J. Tice Editorial
Writer

With all the well documented misery cocaine is causing in this
country, youUd think it would be a straightforward affair for a
legislature to outlaw possession and sale of the stuff.

But you would be wrong.  Governing can become mighty complex when
imaginative and imperious judges decide they donUt like the
direction representative institutions are moving.

Three weeks ago, for the second time in three months, a court
struck down MinnesotaUs tough but uncomplicated 1989 cocaine
statute.  Back in December, the Minnesota Supreme Court had found
unconstitutional the statuteUs distinction between TpowderU and
TcrackU cocaine (crack possession was punished more harshly)
because the distinction denied black Minnesotans Tequal
protectionU since blacks use crack more commonly than do whites.
In January, the legislature eliminated the distinction.

But that wasnUt enough.  On March 20, Hennepin County District
Judge Robert Lynn followed the lead of another passage in the high
courtUs December opinion and struck down the cocaine statute yet
again.  The trouble this time is that defendants are being denied
Tdue processU because the statute imposes harsher penalties on
those who possess larger quantities of drugs.

What weUre witnessing here is a skirmish in a civil war that is
ranging within AmericaUs legal system.  In the federal courts,
lately reshaped by Ronald Reagan and George Bush, judicial
activism is in retreat before an old-fashioned doctrine called
Toriginal understanding.U

This is simply the notion that judges have a limited role in our
democracy -  to apply the Constitution and the laws impartially,
as they were written and understood by the people who enacted
them, and without regards for what the judges personally think is
TfairU or Tjust.U  Justice and fairness, in this view, is for
elected lawmakers (and thus, ultimately, for voters) to decide.

But in many state courts, definitely in Minnesota's, judicial
activism still reigns.  The theory behind judicial activism was
pretty well summed up nearly two centuries ago by, of all people,
Andrew Jackson (who was a judge in between stints as a general and
politician).  Tdo what is right,U Judge Jackson said.  TThat is
what the law always means.U

ThatUs what activist judges think.  To judge from their tangled
theories, they typically decide what they think is right  and then
create legal reasoning to support the results they favor.  They
donUt so much apply the laws and the constitution as amend them
from the bench.

In the December ruling, the court found that even though there was
no evidence that the legislatureUs purpose was to discriminate
against blacks, the mere fact that the law had a disproportionate
impact on Africian-Americans justified the court in applying a
Tstringent standard of review.U

This just meant that the court was going to second guess the
LegislatureUs reasons for believing crack more harmful than powder
cocaine.  And of course the court decided the LegislatureUs
reasons werenUt good enough.  After all, lawmakers had nothing to
go on except the widespread conviction among law enforcement and
drug experts that crack is a more devastating drug.

But surely the LegislatureUs reasons were rational and defensible,
which is all that judicial review should require - unless the real
meaning of this decision is that the Legislature may pass only
laws that the state Supreme Court agrees with.

Judge LynnUs Tdue processU decision which he is reconsidering in a
hearing this week, is similar.  In 1989, the Legislature imposed
stiffer punishments for those who possess larger amounts of
cocaine - seeking, in part, to punish drug dealers more severely
than mere drug users, without always having to prove the
additional crime of Tintent to sell.U  Lynn, following the Supreme
Courts lead, found that this creates an Tmryebuttable presumption
of factU - possession of large amounts proves intent to sell - and
thus denies defendants Tdue process of law.U

But why canUt the Legislature decide that cocaine is a bad thing,
and that more of a bad thing is even worse - in the same way that
we punish the theft of $2,500 more severely than the theft of $25?
And besides, we have many laws that outlaw behavior that is easier
to detect and prove than the specific behaviors we ultimately want
to deter.

All drug possession laws are like that.  ItUs not really
possession of cocaine and heroin that is harmful.  If someone
possessed those substances because he thought they made a good
potting soil additive, that wouldnUt damage anyone.  It is the use
of those drugs as mood-altering addictive narcotics weUre out to
stop.  And our laws, in effect, make the mere possession proof of
intent to use them in this harmful fashion.  Is that, too, and
unconstitutional Tpresumption of factU?

One hopes not, yet itUs hard to see how any of our drug laws could
survive the rigorous application of this due process principle.
But donUt fret needlessly.  Rigorous reasoning may be the one
thing we donUt have to fear from these judges.

@ZEND