A Substantive Due Process Challenge to the War on Drugs

Substantive Due Process Analysis of the Incarceration of Drug Offenders

A. Framework

In Washington v. Glucksberg, Chief Justice Rehnquist described the framework for substantive due process analysis:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

Applying this method, one must first examine freedom from incarceration to determine if it is a fundamental right. If so, government policies that require the incarceration of offenders, including drug offenders, must serve compelling interests and be narrowly tailored to achieve them. This article assumes for the sake of argument that drug problems give rise to compelling state interests. It then reviews the interests asserted by the government in its pursuit of its drug war policies and the results of those policies to determine whether the policy of incarcerating drug offenders is narrowly tailored to those asserted interests.

B. The Fundamental Liberty Interest: Freedom from Incarceration

Federal and state laws subject drug offenders to incarceration. Incarceration is a tremendous deprivation of liberty that triggers the protections of the Due Process Clause. The Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for example, the court held:
[I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf–through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause . . . .

Perhaps the earliest explicit recognition by the Supreme Court of freedom from incarceration as a fundamental right under substantive due process came in Allgeyer:

The ‘liberty’ mentioned in [the fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

An 1891 law review article noted that Blackstone described “freedom from restraint of the person” as “perhaps the most important of all civil rights,” and that Lord Coke felt “the liberty of a man’s person is more precious to him than everything else that is mentioned [in the Magna Charta].” Blackstone states that “the rights of all mankind . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.” Indeed, the original Latin in the Magna Charta’s “law of the land” clause uses the term “imprisonetur.”

No court has invalidated a criminal statute through the application of substantive due process analysis to the fundamental right of freedom from incarceration. At the same time, no court has ruled to the contrary. The Supreme Court avoided the question in Reno v. Flores:

The “freedom from physical restraint” invoked by respondents is not at issue in this case. Surely not in the sense of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the sense of a right to come and go at will, since, as we have said elsewhere, “juveniles, unlike adults, are always in some form of custody,” and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.

This analysis would not apply to adult drug offenders. The Fourth Circuit also avoided addressing freedom from incarceration as a fundamental right in Hawkins v. Freeman:

Hawkins’s rhetorical reference to the right as being “freedom from unjust incarceration,” and that of amicus, American Civil Liberties Union of North Carolina, as the “right to be free from arbitrary incarceration,” are issue-begging generalizations that cannot serve the inquiry. A properly precise description can, however, be found in the facts and legal authorities relied upon by Hawkins in support of his claim. From these, we deduce that the precise right asserted is that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from incarceration have “crystallized.”

Hawkins is distinguishable because it deals with an inmate whose parole was revoked. In any event, the casual dismissal as an “issue-begging generalization” flies in the face of nearly 800 years of common law tradition and over a century of Supreme Court decisions recognizing freedom from incarceration as a fundamental right. Indeed the language of the Supreme Court’s Ingraham decision supports the application of substantive due process proposed in this paper: Visit Drogen kaufen online

While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

The Court also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving the confinement of a person found not guilty by reason of insanity:

Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty.

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