In our system of government, there are designated checks and balances designed to protect the individual from abuse, so that when one area fails, citizens can look to another branch. When it comes to the drug war, however, all bets are off.
Both the executive and legislative branches have been, for the most part, so corrupted by the drug war (or neutered by it) that they’re intractable despite scientific and public policy evidence. And they have maintained their position in the electorate in part through spewing decades of drug war propaganda (although that is now finally wearing thin).
The Supreme Court has long had a significant drug war exception to the Bill of Rights and has never really challenged the government to prove its blatantly false assertions that limiting rights will actually succeed in reducing drug problems.
That leaves the jury system. Nullification is a legitimate way to deal with bad laws, but even there, the Justice system has gone out of its way to try to convince juries that they don’t have that basic innate power.
Even still, the jury system could come into play. Lots of folks have noted there are so many drug cases, that if all drug defendants demanded a jury trial as entitled under the Constitution, the entire court system would collapse. And it’s true.
But here’s where the almost unlimited power of the prosecutor comes into play.
The legislatures have given prosecutors a virtual smorgasbord of charging options, almost all with steep minimum penalties — possession, sale, intent, conspiracy, school zones, gun laws, money laundering, etc. Without even batting an eye, they can pile up enough charges to put you in prison for eternity. (Some years back, one enterprising prosecutor even tried to use a terrorism law against weapons of mass destruction on a meth lab case.)
So going to court is no longer about determining guilt or non-guilt, but rather about negotiating with the prosecutor.
Jacob Sullum has a good piece about Chris Williams, the Montana medical marijuana grower: Plead Guilty or Go to Prison for Life
Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it.
Of more than two dozen Montana medical marijuana providers who were arrested following federal raids in March 2011, Williams is the only one who insisted on his right to a trial. For that he paid a steep price.
Significant reform of the Justice system is required if we’re going to salvage any meaning from our Constitution. But that won’t happen until we end this damned drug war.