Stanton and Douglas Husak (a professor of Philosophy and Law at Rutgers) analyze the principal cases in which the U.S. Supreme Court has discussed the harm associated with drug use. Stanton and Doug are then able to evaluate the susceptibility of the Court to popular hysteria and misinformation about drugs, and the sometimes bizarre logic employed in these decisions, along with some penetrating dissents that have come quite close to the heart of the matter. Based on the claims about what is wrong with drug use made by Supreme Court justices, and the ease with which these can be disproven, drugs should be legalized.

Further Reading

Contemporary Drug Problems, 25:191-233, 1998

"One of the Major Problems of Our Society":
Symbolism and Evidence of Drug Harms in U.S. Supreme Court Decisions

Douglas Husak
Department of Philosophy
Rutgers University

Stanton Peele
The Lindesmith Center


When a government action impinges on important individual rights, the United States Supreme Court is compelled to identify the harms it perceives in a behavior or practice in order to assess the constitutionality of a statute, a government policy, or a penalty. We select the six most recent cases in which the Court has expressed views about the harms it attributes to drug use. We conclude that the recent history of such Court justifications shows that they are almost entirely symbolic. Although several Justices in minority opinions have themselves made this point, only in the most recent such Court decision did the majority label a government action against drugs as symbolic and thereby conclude that it did not justify the infringement of constitutional rights involved. This view of the Supreme Court is the best glimpse available of the kind of arguments official policy-makers rely on to justify drug proscriptions.

The Court Changes Direction

Supreme Court decisions have consistently allowed the state to intervene to protect individuals and society at large from the perceived dangers of illicit drugs—despite the infringement of various constitutional rights that such interventions involve. This willingness to uphold drug regulations and penalties despite their conflicts with individual rights was unexpectedly broken by the Court's decision in Chandler v. Miller.[1] The disputed statute required candidates for Georgia state offices to certify they had a negative drug test 30 days prior to qualifying for nomination or election to office. Speaking for an overwhelming majority (8-1), Justice Ginsburg indicated that the State presented no realistic evidence of a drug problem among State officeholders—indeed, counsel representing Georgia admitted as much. As a result, Ginsburg reasoned, the legislation was "symbolic"[2] and did not overcome the presumption of individualized suspicion required for searches embodied in the Fourth Amendment.

Ginsburg's argument in Chandler was seemingly at odds with the Court's decisions in previous drug-testing cases, most notably in National Treasury Employees Union v. Von Raab.[3] Ginsburg admitted that the government had also lacked evidence of drug abuse among customs workers, the population subjected to drug testing in the latter case. Still, the mission of these customs workers was alleged to be highly sensitive—the " 'first line of defense' against the smuggling of illicit drugs into the United States."[4] This attempt to distinguish Von Raab seems to represent a reversal of Court reasoning that is difficult to explain in the terms adopted in the majority's decision. As Rehnquist pointed out in his lone dissent in Chandler, the employees for whom testing was permitted in Von Raab could hardly be said to occupy more sensitive public positions than such high-ranking state officials as the gubernatorial candidates to be tested in Chandler. Georgia had sought to justify its drug-testing requirement by pointing out that "the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials."[5] In Rehnquist's view, these rationales were persuasive; "Surely the State need not wait for a drug addict, or one inclined to use drugs illegally, to run for or actually become governor before it installs a prophylactic mechanism."[6]

Rehnquist and the majority differed in Chandler, then, about whether and under what conditions legislation is symbolic. Ginsburg does not explain exactly how the Court decides that a given law is symbolic. For the purposes of this article, we define government action as symbolic when it is not likely to remedy an existing harm, or if indeed the existence of the harm to be remedied has not been established. As we will see, the allegation that a drug proscription, policy or penalty is "merely symbolic" has frequently been made by Justices who believed a law to be unconstitutional. Until Chandler, however, this allegation had appeared only in dissenting opinions.

Establishing that legislation or governmental action is or is not symbolic seemingly requires the Court to identify the nature of the harm to be prevented and the likelihood that the measure under question will succeed. Admittedly, Ginsburg indicates that "a demonstrated problem of drug abuse" is "not in all cases necessary to the validity of a drug-testing regime," although it would "shore up" the basis for infringing on Fourth Amendment rights.[7] Still, Chandler may represent a significant departure from the deference the Supreme Court has tended to show toward legislative judgments about such questions and to indicate that the Court will henceforth require evidence that laws to deter drug use (and that impinge on constitutional rights) have some probability of rectifying an existing harm. This possible shift was presaged by the absence in the majority decision of the all-justifying phrase that typically signals anti-drug decisions by the Court but that appeared in Chandler only in the dissent: "Few would doubt that the use of illegal drugs and abuse of legal drugs is one of the major problems of our society."[8]

Background to Court Decision-Making: Specifying Drug Harms

The efficacy of U.S. policies against illicit drugs—including the legitimacy of criminal prohibitions and sanctions—is the subject of enormous controversy.[9] Much of this controversy stems from wide disagreement about the exact nature of the harms that drug legislation is designed to prevent, and whether these harms can effectively be prevented by the legislation in question.[10] What are these harms? How persuasive is the evidence that they really exist? How great is the likelihood that the law under scrutiny will help to prevent them? How important is the state interest in curtailing these harms, especially when the measures employed to prevent them infringe upon constitutional rights?

The state operates in an environment characterized by fundamental disagreement about the harms of drugs and the failure of legislatures to provide a firm rationale for the laws they pass and policies they enforce. That given harms have not been empirically linked to drug use, or that laws have not been empirically linked to a reduction in these harms, may be totally ignored and have usually been irrelevant in the legislative process. As one commentator noted, "many governmental campaigns against drugs have come from economic, moral, or tangential reasons, before the physiological effects of drugs were known."[11]

By default, the task of identifying the "real rationale" for given anti-drug measures has frequently fallen to commentators rather than to state officials. Commentators who argue in favor of drug proscriptions have described the prevalence of a wide variety of supposed consequences of drug use. Indeed, drugs have been linked to virtually every problem that plagues our society. Many such allegations defy empirical tests. Drug use has been said to "debase... one's life" and to "alter... one's soul,"[12] to cause the "slow undermining of societal values and rules,"[13] and to "poison the spirit."[14] Other commentators criticize anti-drug efforts by claiming that drug laws are ineffective at accomplishing their objectives, or that drug proscriptions are counterproductive.[15] Among other disadvantages, the enforcement of anti-drug laws has been a major factor in the explosive growth in the imprisonment of nonviolent offenders and has created economic incentives for organized crime. In addition, the laws and penalties against drug use may cause separate problems—as with laws preventing needle-exchange programs, for example.[16]

Although legislators have no general obligation to describe the rationale for the prohibitions and penalties they enact, in some instances courts may be required to identify the harms they believe that legislation is designed to prevent and to assess the prospects that the law in question will be effective in preventing them. Of course, courts are divided about these matters as well. Occasionally courts have vehemently opposed the drug regulations they have reviewed.[17] When constitutional issues are raised, the Supreme Court is the final arbiter in such cases. The Court has never squarely addressed the justification of drug prohibitions. In a handful of exceptional cases, however, the Court has presented, often tangentially, what it understands the rationale for various drug laws to be. These occasions arise when a drug offense, penalty, or preventive measure is alleged to infringe on a constitutional right. These cases are the focus of our inquiry here.

Courts assess the constitutionality of most criminal statutes by applying the "rational basis" test.[18] Traditional formulations of this test permit legislative restraints on liberty that are rationally related to a legitimate government interest.[19] The rational basis test does not require that courts decide whether the law actually succeeds in achieving its goals. Applications of this test invariably result in courts upholding the constitutionality of the offense.[20] Often, however, a more demanding standard of judicial review is invoked.[21] The "compelling state interest" test applies when a fundamental personal right is implicated. This test requires courts to decide whether the challenged interference is necessary to advance a compelling government interest.[22] This test is not satisfied if less intrusive alternatives to achieving the statutory objective are available.

All in all, the Supreme Court has analyzed the harms of drug use in only a very few cases. In some of these cases the compelling state interest test was applied because a drug-prohibition-related activity burdened (at least in the eyes of some of the Justices) a fundamental right clearly embodied in the Constitution. Sometimes, when a rational basis test rather than a compelling state interest test was invoked, the Court has nonetheless pronounced upon the harms of drug use. In these cases the Court has balanced the infringement upon individual freedoms against the "reasonableness" of the drug regulation. A primary type of case that often (but not always) requires the Court to identify the state's purposes underlying an action occurs when the government conducts a search for drugs. The Court is then seemingly obligated to evaluate whether the state's goals are important enough to outweigh the individual's Fourth Amendment protection.[23]

The crucial decision to subject governmental regulation to one level of scrutiny rather than to another entails important issues about constitutional law.[24] Our central focus, however, is not on constitutional law per se. We do not argue that the Supreme Court was legally right or wrong in rendering any of the decisions we will discuss. Instead, our goal is to examine—and then to critically evaluate—what the Justices of the Supreme Court believe about the nature and severity of the harms to be prevented by various kinds of prohibitions and policies against illicit drugs. We are most concerned about the cogency of the Court's analysis of these issues in the cases we consider. One would hope that the infringement upon constitutional rights would require more than a broad allegation that "the use of illegal drugs ... is one of the major problems of our society." Even if this allegation is true, one would expect that the Court would require evidence that specific harms to be prevented actually exist and that the legislation in question is reasonably effective in preventing them. Therefore we examine the reasoning the Supreme Court has applied to identify the harm(s) of illicit drug use in the five most important cases in the last decade in which the Court has commented on drug harms prior to the Chandler case: Skinner v. Railway Labor Executives, National Treasury Employees Union v. Von Raab, Employment Division v. Smith, Harmelin v. Michigan, and Acton v. Vernonia School District. Students of constitutional law seldom group these cases, since they involve a variety of individual rights. They are related for us by the fact that they all involve illicit drugs. Although the Court upheld the proscription, penalty, or regulation in each of these five cases, none of the decisions was unanimous. We pay particular attention to the perspectives of individual Justices, scrutinizing both the majority and dissenting opinions to better understand the Court's attitude about the rationale for various drug prohibitions and regulations.

In examining these cases, we could detect no authoritative declaration of a rationale for proscribing the use of illicit drugs generally, or of any given drug in particular—or even an evidentiary basis for making the decision. We find, rather, that these cases provide an insight into popular prejudices about drugs, in addition to the idiosyncratic thinking of various Supreme Court Justices about the harms of drugs. Both the nature and the severity of the harms alleged are open to question.[25] Indeed, these allegations are frequently challenged in dissenting opinions. Until Chandler, however, serious reservations about the strength of the state's interest in combating drugs were confined to minority opinions. In conclusion, we formulate six generalizations about the approach taken by the Court in these cases.

In general, the Court has readily sacrificed individual rights to support the government's ongoing anti-drug efforts.[26] The Court has made an unremitting series of such decisions—albeit with periodic varied objections expressed by a shifting cast of dissenters. The decision in Chandler—concerning, perhaps ironically, public officials—indicates that the Court may finally have reached its limit. Rather than symbolism, evidence of existing harms, and reason to believe that the legislation in question will help to prevent these harms, may now be demanded if the Court is to uphold the constitutionality of measures to combat illicit drugs that impinge on individual rights.

Skinner v. Railway Labor Executives [27]

Skinner is the first of the cases decided by the Supreme Court in the last decade to have addressed the rationale for drug policies. At issue was the right of the Federal Railroad Administration (FRA) to test railroad employees for drugs and alcohol upon the occurrence of accidents or other untoward events. The United States District Court upheld the constitutionality of these tests, but the decision was reversed by a divided panel of the Court of Appeals.[28] The Supreme Court reversed again, upholding the constitutionality of the tests without the usual Fourth Amendment requirements of a warrant or a reasonable suspicion that any particular employee might be impaired by drugs or alcohol. The Court held that the state interest served by the regulations was a "special need" and sufficiently compelling to outweigh the privacy concerns of the railroad employees.[29] The majority decision was delivered by Justices Kennedy/Rehnquist/ White/Blackmun/O'Connor/ Scalia, joined in part by Stevens, with a dissent by Marshall and Brennan.

Virtually all of the Skinner decision focused on the abuse of alcohol among railway employees. According to the Court, "the problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago."[30] The Court noted that a 1979 study of alcohol abuse on seven major railroads found that "[a]n estimated one out of every eight railroad workers drank at least once while on duty during the study year."[31] In addition, "5% of workers reported to work 'very drunk' or got 'very drunk' on duty at least once in the study year," and "13% of workers reported to work at least 'a little drunk' one or more times during that period."[32]

In the 1970s, the efforts to curb alcohol use were broadened to include illicit drugs. But no evidence of drug problems among railway workers was cited to support the expansion of these deterrent efforts. Instead, the data used to substantiate the need for testing in Skinner did not differentiate between the harms caused by alcohol and those attributed to drugs. "Alcohol and drug use" were confirmed by "industry participants" to "occur on the railroads with unacceptable frequency."[33] Moreover, "alcohol or drug use" was said to be implicated as a "probable cause or contributing factor" in a substantial number of instances of property damage and personal injury.[34] According to these data, "34 fatalities" and "over $28 million in property damage" were alleged to have been caused by the errors of "alcohol- and drug-impaired employees" in "45 train accidents and train incidents."[35] In the absence of testing, however, the extent to which accidents and losses were attributed to drugs could be only crude approximations: "Railroads were able to detect a relatively small number [of violations of the rule prohibiting possession and use of illicit drugs], owing, primarily, to their practice of relying on observation by supervisors and co-workers to enforce the rule."[36] In any event, absolutely no hard data were used to substantiate allegations of drug use among railway workers in Skinner.

Although Skinner included only the most generic statements about drug use, the case became the keynote in justifying future Supreme Court decisions in drug cases. Consider, for example, the citation to Skinner from Von Raab, announced by the Supreme Court on the same day: "Petitioners... do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today. There is little reason to believe that American work places are immune from this pervasive social problem, as is amply illustrated by our decision in Railway Labor Executives."[37] No data were cited in Skinner to establish the levels of drug use in the population to be tested, let alone throughout society. Had the incidence of drug abuse really been so "pervasive," hard evidence of its existence should have been easy to supply. The primary question presented in Skinner is how a case involving no evidence of drug use came to stand as authority for the proposition that drug abuse is an obvious problem in the American work place and throughout society at large.

The need for evidence of an existing problem seems essential to resolving the potential violation of Fourth Amendment rights. The drug tests challenged in Skinner involve a search, the constitutionality of which is determined by its reasonableness (the rational basis standard). The Court assessed workers' privacy interests as minimal; the production of a "urine sample for testing cannot, by itself, be said to infringe [upon] significant privacy interests."[38] The state's interest in conducting the search, however, was characterized as "compelling."[39] The compelling nature of this interest, the Court found, "is obvious. An idle locomotive, sitting in the round-house, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs."[40] Thus the Court focused on the state's interest in preventing railway accidents: "The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs."[41] And "even a momentary lapse" on the part of these workers "can have disastrous consequences."[42]

The claim that the state has a compelling interest in the prevention of railway accidents cannot be contested. And the claim that impairment caused by drugs or alcohol might contribute to such accidents seems fairly incontrovertible. Here, then, is an obvious harm, and a plausible allegation about how drug use might cause it. Still, the broad statements in Skinner do not comprise concrete evidence of a drug problem that can be readily employed in balancing the need for intrusive testing.[43] Rather, the unanimous fear of drug abuse in society was asserted and accepted uncritically; the concurring opinion of Stevens and even the dissenting opinion by Marshall and Brennan did not question whether this fear was exaggerated or misplaced.

Stevens's dissent focused on instrumentality—he doubted that testing would discourage the use of drugs or alcohol, since users who are not deterred by the "risk of serious personal injury" are unlikely to be deterred by "the additional threat of loss of employment."[44] In their dissent, Marshall and Brennan did not challenge the basic assumptions of the majority. They wrote: "The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all."[45] Rather, they dissented because they believed that Fourth Amendment protections were entitled to more weight than the majority gave them. The dissenters pleaded that the "precious liberties of our citizens"[46] should not be "swept away by society's obsession with stopping the scourge of illegal drugs."[47]

National Treasury Employees Union v. Von Raab [48]

In a companion case to Skinner, a union of federal employees brought suit against the United States Customs Service to challenge the constitutionality of its drug-testing program. The program required urine specimens from employees who were required to handle classified materials, to inspect for illegal drugs, or to carry firearms. Employees who tested positive were subject to dismissal from the service. The United States District Court granted injunctive and declaratory relief.[49] The Court of Appeals vacated the injunction,[50] and certiorari was granted. The Supreme Court reversed, with Kennedy/Rehnquist/White/Blackmun/O'Connor affirming the constitutionality of drug testing for most of these employees—those who were involved in interdiction or who carried firearms. Separate dissenting opinions were filed by Scalia/Stevens and by Marshall/Brennan.

Judging the reasonableness (and thus the constitutionality) of the drug-testing program requires a balancing of "the individual's privacy expectations against the Government's interests."[51] To perform this balancing, the Court in Von Raab (as with Skinner) had to identify and quantify the importance of deterring drug use in a specific population. While Skinner presented survey evidence about the use of alcohol, generalized from such data to drug use, and then made an inference about the problems this use could be expected to produce among railway workers, Von Raab presented no evidence of any kind of drug use among the relevant population. Instead, the Court simply found that the state has a "special need" to deter any drug use that might occur among customs employees in sensitive positions.[52]

The Court's analysis described the government's interest in deterring drug use and the weight it should be given when balanced against Fourth Amendment values. The results of this analysis varied with the particular position of the employee in question. The menace of customs employees who are authorized to use deadly force but are impaired by drugs seems somewhat analogous to that of railway employees who are impaired. These employees "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences."[53] Thus the Court found "that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Indeed, ensuring against the creation of this dangerous risk will itself further Fourth Amendment values, as the use of deadly force may violate the Fourth Amendment in certain circumstances."[54]

The Court extended this reasoning to find that interests of comparable weight support the testing of employees who simply inspect for illicit drugs. The Supreme Court quoted with approval the speculation by the Court of Appeals that drug use among this category of employees would cast "substantial doubt on their ability to discharge their duties honestly and vigorously, undermining public confidence in the integrity of the Service and concomitantly impairing the Service's efforts to enforce the drug laws."[55] Moreover, the Court feared that illicit drug users in this population "may be tempted to divert for their own use portions of any drug shipments they interdict" and be "susceptible to bribery and blackmail."[56] The Court concluded that the "national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics."[57] Finally, the Court found that the testing of employees who handled classified documents did not satisfy the test of reasonableness, and remanded this part of the decision to the Court of Appeals for further clarification of its scope and purpose.

The petitioning customs workers argued that the drug-testing program would not deter drug use, since employees were notified five days in advance of a pending test and could avoid a positive urine by abstaining from drug use for that brief period. Fundamentally, however, the union argued that drug testing was unjustified because the Customs Service had failed to provide any evidence of a drug problem in the group: "Counsel for petitioners informed us at oral argument that no more than 5 employees out of 3,600 have tested positive for drugs."[58] The Court's response to this argument is noteworthy: "Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today.... The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity."[59]

Marshall's dissent, joined by Brennan, repeated the concerns they raised in Skinner. They endorsed the government's interest in proscribing drug use, but they objected to the use of a balancing test in Fourth Amendment cases, complaining about the "unprincipled and unjustifiable... abandonment of the requirement that searches of the person rest on probable cause."[60] Despite its liberal source, the Marshall and Brennan dissent expressed no reservations about the substance of the drug-testing program.

Scalia's dissent, however, was highly critical of the Court's use of evidence in Von Raab in balancing individual rights against government needs. Joined by Stevens, Scalia protested that "in the present case... neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use....[T]he Court's opinion in the present case... will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees."[61] According to Scalia, the Court's arguments

are supported by nothing but speculation, and not very plausible speculation at that. It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler.... Nor is it apparent to me that Customs officers who use drugs will be appreciably less "sympathetic" to their drug-interdiction mission.... Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking "impaired perception and judgment" than is their current knowledge that, if impaired, they might be shot dead in unequal combat with unimpaired smugglers.... What is absent... and as far as I am concerned dispositively absent—is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribe-taking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. Although the Court points out that several employees have in the past been removed from the Service for accepting bribes and other integrity violations ... there is no indication whatever that these incidents were related to drug use by Service employees. Perhaps concrete evidence of the severity of a problem is unnecessary when it is so well known that courts can almost take judicial notice of it; but that is surely not the case here. The Commissioner of Customs himself has stated that he "believe[s] that Customs is largely drug-free," that "[t]he extent of illegal drug use by Customs employees was not the reason for establishing this program," and that he "hope[s] and expect[s] to receive reports of very few positive findings through drug screening." The test results have fulfilled those hopes and expectations.[62]

Scalia regarded the state's alleged justifications for implementing drug-testing programs as so "feeble" that he was led to speculate about the real motivation behind these initiatives: the tests must be designed to demonstrate "that the Government is serious about its 'war on drugs.'"[63] In language that would become familiar in dissenting opinions involving drugs until Chandler, Scalia warned that "symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search."[64]

In Von Raab, four Justices would not allow the infringement upon Fourth Amendment protections to prevent a problem that might have been entirely imaginary. For the majority, even hypothetical drug use was sufficient to decide that a search of body fluids is reasonable. Of course, the evidence of specific drug use in Skinner; in which Scalia and Stevens joined the majority, was little better than that in Von Raab. Nonetheless, Scalia and Stevens distinguished Skinner by the "demonstrated frequency of drug and alcohol use by the target class of employees, and the demonstrated connection between such use and grave harm."[65] In making this argument, Scalia (and Stevens) did not differentiate between alcohol use and drug use. Scalia might have been on firmer ground if he had contrasted the importance of the state's interest in deterring drug use between the two target populations. The specter of a drugged railway engineer who negligently endangers the lives of passengers seems more worrisome than that of an agent involved in drug interdiction whose own drug use compromises his mission.

Moreover, the tests in Skinner were imposed only after a railroad accident had actually occurred. In contrast, the tests in Von Raab were imposed as a proactive measure, to reduce the risk of a possible harm. The majority defended the importance of drug-testing customs workers merely by asserting the significance of the workers' mission: "The Customs Service is our Nation's first line of defense against one of the greatest problems affecting the health and welfare of our population."[66] And "there is little reason to believe that American workplaces are immune from this pervasive social problem, as is amply illustrated by our decision in Railway Labor Executives."[67] Rather than demanding evidence of drug harms, the Court simply bootstrapped its decision onto an equally unsubstantiated claim in an earlier case.

Employment Division v. Smith [68]

The next occasion for the Supreme Court to comment on the nature and severity of the harms caused by drugs arose in the context of a case that raised First Amendment rather than Fourth Amendment concerns. Respondents Smith and Black were fired from a private drug-treatment center in Oregon for taking peyote during a Native American church ceremony. They were subsequently denied unemployment benefits from the state fund. The respondents argued that this denial of benefits violated the "free exercise" clause of the First Amendment. The Oregon Supreme Court agreed, but the U.S. Supreme Court reversed. Scalia/Rehnquist/White/Stevens/Kennedy wrote the majority opinion, with which O'Connor concurred. Blackmun authored a dissent, joined by Brennan and Marshall.

Perhaps the most surprising aspect of the Court's opinion was its failure to require a compelling state interest to justify the state's burden in challenging the respondent's exercise of religious liberty. The majority denied that a compelling state interest was needed to exempt people from complying with an otherwise valid and neutral criminal law. The application of this stringent test would "court anarchy"[69] by permitting each person, "by virtue of his beliefs, to become a law unto himself."[70] Thus, according to the majority, the curtailment of Smith's religious liberty did not need to be justified by a compelling state interest. Because the more demanding test was not applied, the majority found no reason to explore whether and to what extent the state has an interest in curtailing the use of peyote. Scalia's opinion simply accepted without question Oregon's inclusion of peyote on its schedule of controlled substances. This aspect of Smith so dismayed Congress that it responded by passing the Religious Freedom Restoration Act, which mandated by statute that all state policies that interfere with religious practices (like those in Smith) had to satisfy the compelling state interest test.[71]

The case is worthy of attention, however, because each of the four Justices who did not join in the majority opinion believed the compelling state interest test to be applicable. As a result, they were led to address the topic of our inquiry. O'Connor, in her concurring opinion, is the only Justice to contend both that the compelling state interest test was applicable and that this standard was achieved in prohibiting Native Americans from using peyote in their religious ceremonies. Evoking what had now become the standard reference to the nation's scourge of drug abuse—citing Von Raab, which in turn bootstrapped its claim on Skinner—O'Connor intoned: "As we recently noted, drug abuse is 'one of the greatest problems affecting the health and welfare of our population' and thus 'one of the most serious problems confronting our society today.'[72] Indeed," O'Connor continued, "under federal law (incorporated by Oregon law in relevant part), peyote is specifically regulated as a Schedule I controlled substance, which means that Congress has found that it has a high potential for abuse, that there is no currently accepted medical use, and that there is a lack of accepted safety for use of the drug under medical supervision."[73]

O'Connor concluded that "although the question is close," the "uniform application of Oregon's criminal prohibition is essential to accomplish its overriding interest."[74] She described two such state interests. The first involves the health hazards of peyote, which "exist regardless of the motivation of the user," so that the ingestion of substances such as peyote, "even for religious purposes, violates the very purpose of the laws that prohibit them."[75] The second is Oregon's interest in "preventing trafficking in controlled substances,"[76] since the peyote that would be available for a religious ceremony might be diverted to persons whose use has nothing to do with religious expression. In combination, O'Connor reasoned, these interests are sufficiently weighty to satisfy the compelling state interest test.[77]

Of course O'Connor is correct that the state has a clear interest in promoting the health of its citizens. In the present context, however, it is difficult to label this interest as compelling in light of the absence of widespread social use of peyote or any demonstration that peyote use is especially harmful. Unlike the situations in which employees were tested in Skinner or Von Raab, no allegations were made in Smith that the harmful use of peyote jeopardized the health and safety of others. If, on the other hand, the state's interest in protecting drug users from harming themselves is labeled as compelling, the door is open to an unprecedented degree of government prohibitions—of unhealthful foods or of tobacco products, for example. It is hard to believe the Court would accept as fundamental the state's interest in preventing persons from eating unhealthful foods, especially if those foods were consumed in the course of a controlled religious ritual.

Smith is most notable for Blackmun's dissent, joined by Brennan and Marshall. The dissenters agreed with O'Connor that the compelling state interest test should be applied, but they disagreed strongly with O'Connor about whether Oregon's policies outweighed the First Amendment rights of religious peyote users. In evaluating this question, Blackmun undertook a detailed examination of the value of religious peyote use (unlike the vague generalities Marshall and Brennan expressed in their dissents in Skinner and Von Raab).

First, noting that Oregon did not prosecute those who used peyote for religious purposes—including the respondents—Blackmun reasoned: "The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest if it does not, in fact, attempt to enforce that prohibition."[78] Oregon had cited no deleterious effects due to its failure to arrest and prosecute peyote users like Smith. Moreover, the federal government, along with 23 states, exempts the religious use of peyote from its drug enforcement laws—again, without any evidence of the dire consequences envisioned by O'Connor. Thus Blackmun concluded that the state's interest could hardly be compelling. In language that had become familiar in dissenting opinions in cases involving drugs, he concluded that the state's asserted interest "amounts only to the symbolic preservation of an unenforced prohibition."[79]

In addition, Blackmun challenged O'Connor's concern about the leakage of peyote into unauthorized hands. Inasmuch as federal authorities had seized only small quantities of peyote, he maintained that "there is... practically no illegal traffic in peyote."[80] As Blackmun observed, consumption of the bitter peyote plant is unpleasant, so no increase in recreational use would be expected were religious use to be permitted. In distinguishing peyote from marijuana, Blackmun noted that "peyote simply is not a popular drug."[81]

Blackmun also contested O'Connor's claim that peyote is equally harmful when consumed in religious and in nonreligious contexts. The dissent questioned whether the amount of peyote consumed in religious rituals was sufficiently great to be harmful, and maintained that the internal restrictions and supervision on ceremonial use would "substantially obviate the State's health and safety concerns."[82] Blackmun presented anthropological data and analyses on the impact of the cultural features of Native American peyote use, including a discussion of the ceremony's therapeutic value for alcoholism.

Blackmun concluded that the compelling state interest test could not be satisfied by "mere speculation about potential harms."[83] Such speculation, of course, provided the entire rationale for testing in Von Raab, a decision in which Blackmun had joined. But here, in Blackmun's view, religious liberty was at stake, and "prior decisions... have demanded evidentiary support for a refusal to allow a religious exception."[84] No such evidentiary support appeared in Smith. According to Blackmun, the state made no effort to provide "evidence that the religious use of peyote has ever harmed anyone."[85] In fact, the state had not even argued that its unwillingness to exempt Smith was justified by its interests in his health and safety.

Blackmun's dissent is a remarkable essay. It is, in all likelihood, the best-developed exposition of drug effects ever offered by a Justice of the Supreme Court. It analyzes the pharmacologic action and consumption traits associated with peyote, the ritualistic restraints on its use, and even the beneficial impact of such a ritual in reducing alcohol abuse—the main drug scourge among Native Americans. Blackmun's references are thorough and fairly far-reaching.[86] Despite the depth and care of his analysis, however, he conveyed no skepticism about the general efficacy of drug prohibitions. Instead, he accepted the existence of a "drug crisis" while expressing the "hope" that the Court's opinion in Smith "is not a product of overreaction to the serious problems the country's drug crisis has generated."[87] Yet this remark seems to be an apt characterization of the basis of prior decisions, such as Von Raab, in which Blackmun had joined.

Harmelin v. Michigan [88]

The next major drug case to be decided by the Court involved the uncertain terrain of the Eighth Amendment. The Court upheld the lifetime sentence with no chance of parole of petitioner Ronald Harmelin, who had been convicted of possessing 672 grams of cocaine. Harmelin's allegation that his sentence was a "cruel and unusual" punishment was rejected. This case provides a rare opportunity to explore the views of several members of the Supreme Court about the rationale for drug proscriptions and penalties, even though no Justice applied the compelling state interest test in evaluating Harmelin's claim.

The opinion delivered by Scalia and Rehnquist denied that the Eighth Amendment contains a "proportionality guarantee" (that is, a rule requiring that the severity of the punishment be proportionate to the seriousness of the crime), at least for noncapital offenses.[89] Hence (as in Smith), Scalia had virtually nothing to say about the seriousness of the drug offense except that the matter was for the Michigan legislature to decide. Kennedy/O'Connor/Souter concurred with the judgment on the grounds that the Eighth Amendment contains a "narrow proportionality principle" that was satisfied in this case.[90] White/Blackmun/Stevens dissented, concluding, along with Marshall, that the Eighth Amendment contains a more robust proportionality requirement, and that Harmelin's sentence was unconstitutionally disproportionate.

While constitutional lawyers and sentencing theorists are interested in Harmelin because of its conflicting views about the scope and application of the Eighth Amendment to non-capital crimes,[91] our interest is in the Court's justification for Harmelin's sentence. Since Kennedy voted with the majority but found a narrow proportionality requirement in the Eighth Amendment, he had to explain why Harmelin's crime was "momentous enough to warrant the deterrence and retribution of a life sentence without parole."[92] He made the familiar citation to Von Raab: "Possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population. Treasury Employees v. Von Raab."[93] Kennedy dismissed Harmelin's claim that his offense was not sufficiently serious to warrant the most severe punishment employed by Michigan: "Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society."[94]

Kennedy mentioned without citation the "pernicious effects on the individual who consumes illegal drugs,"[95] apparently believing (as with O'Connor in Smith) that the harmful health effects of illicit drugs in general, and of cocaine in particular, are beyond questioning. Nonetheless he felt a need to explain why these effects are sufficiently severe to support a description of Harmelin's crime as "momentous" and to justify the punishment imposed. The bulk of Kennedy's opinion supports his characterization of the seriousness of Harmelin's offense by exploring the connections between drugs and crime. According to Kennedy:

Drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiologic functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture.... Studies bear out these possibilities and demonstrate a direct nexus between illegal drugs and crimes of violence.... To mention but a few examples, 57 percent of a national sample of males arrested in 1989 for homicide tested positive for illegal drugs.... The comparable statistics for assault, robbery, and weapons arrests were 55, 73, and 63 percent, respectively.... In Detroit, Michigan, in 1988, 68 percent of a sample of male arrestees and 81 percent of a sample of female arrestees tested positive for illegal drugs. ... Fifty-one percent of males and seventy-one percent of females tested positive for cocaine.... And last year an estimated 60 percent of the homicides in Detroit were drug related, primarily cocaine related.[96]

Kennedy concluded that "these and other facts and reports detailing the pernicious effects of the drug epidemic in this country... demonstrate that the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine—in terms of violence, crime, and social displacement—is momentous enough to warrant the deterrence and retribution of a life sentence without parole."[97]

The dissenting opinion by White/Blackmun/Stevens contested Scalia's claim that the Eighth Amendment includes no requirement of proportionality in non-capital cases. (Marshall's separate dissent repeats his view that the death penalty is "in all instances unconstitutional" under the Eighth Amendment.[98]) More significantly, however, White disagreed with Kennedy about the extent of "the harm caused or threatened to the victim or society" by Harmelin's offense.[99] Kennedy's opinion, according to White, unfairly attempted to defend Harmelin's sentence by focusing on the "subsidiary" or "collateral" or "tangential" consequences of drug use.[100] These indirect consequences of "drugs such as cocaine," although "indisputably severe," are "not unlike those which flow from the misuse of other, legal substances. For example... alcohol."[101] And "it is inconceivable that a State could rationally choose to penalize one who possesses large quantities of alcohol in a manner similar to that in which Michigan has chosen to punish petitioner for cocaine possession, because of the tangential effects which might ultimately be traced to the alcohol at issue."[102] Thus White concluded that "the 'absolute magnitude' of petitioner's crime is not exceptionally serious."[103]

White's approach is fairly radical in the history of Supreme Court attempts to assess the harmfulness of an illicit drug, evaluating it against some comparative standard—in this case, alcohol. White repeated that "drugs are without doubt a serious societal problem."[104] But these dangers, in his view, were due less to the connection between drugs and crime than to the evils of addiction:

Mere possession of drugs—even in such a large quantity—is not so serious an offense that it will always warrant, much less mandate, life imprisonment without parole. Unlike crimes directed against the persons and property of others, possession of drugs affects the criminal who uses the drugs most directly. The ripple effect on society caused by possession of drugs, through related crimes, lost productivity, health problems, and the like, is not the direct consequence of possession but of the resulting addiction, something which this Court held in Robinson cannot be made a crime.[105]

Harmelin himself was not alleged to have engaged in any of the types of crimes to which Kennedy claimed that drugs lead. Instead, the justification for his sentence was based on the "grave harm to society" that his offense "threatened to cause."[106] Extreme sentences for drug use frequently focus on worst-case scenarios that do not involve the particular defendant to be sentenced.[107] Even were Kennedy correct about the connection between Harmelin's offense and the likelihood of committing other offenses, it is unclear how the creation of risks that did not materialize in actual harm can be sufficiently grave to merit life imprisonment. The allegation that drug users tend to become criminals even if true—cannot be a good reason to punish Harmelin more severely than he would have been punished had he himself committed the very crimes supposedly perpetrated by some drug users.[108]

Moreover, although Kennedy cited statistics that display a relationship between criminal activity and drug use, he ignored the professional debate about the causal connection between drug use and crime. Indeed, the one social scientist—Goldstein—Kennedy cited to support his analysis does not argue that drugs drive users to crime. Rather, he contended that the two phenomena are linked by the cultural environment in which drug use takes place—driven in good part by its illegality.[109]

White, on the other hand, attributed the dangers of drugs to the incidence of addiction. But he cited no evidence to support the view that cocaine users become addicts. In fact, few cocaine users report compulsive use, even after extensive experience with the drug.[110] For example, the 1995 National Household Drug Survey revealed that while 10% of the U.S. population had ever used cocaine, only 2% had used cocaine within the last year, and fewer than 1% had used it in the last month.[111] While fewer than a tenth of all users take cocaine as frequently as monthly, the percentage who use the drug compulsively appears to be a fraction of a percent of all cocaine users.[112] In fact, "despite a widespread perception that drug use is dangerous and harmful, there are ample data supporting a conclusion that... most drug use is transient, noncompulsive, and innocuous."[113] Although White appropriately questioned Kennedy's facile views about the connection between drugs and crime, his own position parroted equally unfounded views about the connection between cocaine and addiction. Even though White himself argued for a lesser punishment in Harmelin, the misapprehension he expressed about addiction is often used to fuel harsh legal measures against drug use and drug users.[114]

As with other such references, the majority's citation to Von Raab—that "possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population"[115]—makes sense only to the extent that its authors believed this claim a priori. Harmelin reified the speculated evils of Customs workers who might use drugs in Von Raab into a crime that rated the most stringent penalty available in Michigan's criminal justice system.

Acton v. Vernonia School District [116]

The most recent case prior to Chandler in which the Supreme Court evaluated potential drug harms returned to Fourth Amendment drug-testing issues, this time in relation to public schools. Wayne Acton, a 12-year-old student, brought suit against a program requiring all students in the Vernonia, Oregon, school system to submit to a urine test for drugs in order to be eligible to compete on athletic teams. The district court dismissed the action,[117] but the court of appeals reversed[118] and certiorari was granted. The Court, in an opinion by Scalia/Rehnquist/Kennedy/Thomas/Ginsburg/Breyer (with a separate concurrence by Ginsburg), upheld the testing against the Fourth Amendment challenge. Although the Court declined to characterize the governmental interest motivating the search as "compelling,"[119] the search was found to be reasonable in light of the need to deter drug use among student athletes.

According to Scalia, the state's interest in deterring drug use among student athletes outweighs Fourth Amendment protections because "deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs, which was the governmental concern in Von Raab—or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner."[120] The Court supported its judgment about the strength of the state's interest in Vernonia by citing psychological studies that described how the "physical, psychological and addictive effects of drugs are most severe" during "school years."[121]

The evils of adolescent drug use notwithstanding, Scalia and the school district had sought to establish the existence of a drug problem that needed to be deterred at the expense of Fourth Amendment protections. The evidence used here was almost entirely anecdotal. The Court noted:

Teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems.... Several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.[122]

These problems were alleged to be especially acute in the sports program. "Athletes" were said to be "leaders" of an emerging "drug culture."[123]

According to Scalia, drug use among athletes is especially worrisome because it "increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance."[124] Scalia repeated uncritically the anecdotal evidence that drug use was especially problematic among Vernonia athletes: "The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and missed assignments by football players, all attributable in his belief to the effects of drug use."[125] More generally, "we could not possibly find clearly erroneous ... the District Court's conclusion that a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion... and that the rebellion was being fueled by alcohol and drug abuse."[126]

The foregoing accounts are highly suggestive, but also completely devoid of hard evidence. Injuries and poor sports performances were attributed to drug use, although no such connection was ever proved or even investigated. The alleged connection between school disruption and drug use, however widely accepted, was also a matter of speculation. The assertions that drug use was rampant, had increased rapidly, and was the source of serious disciplinary problems are somewhat reminiscent of mass community experiences involving daycare child abuse. The single expert quoted, Robert DuPont, is a former director of the National Institute on Drug Abuse known for his activist anti-drug campaigns. His contention that the refusal of students to respond to disciplinary messages was due to a psychological condition associated with drug use is of dubious scientific value.

The Court's unexceptional judgment that drug use by adolescents is a greater concern than drug use by adults does not unequivocally show that the state's interest in the drug-testing program in Vernonia is greater than that in Skinner or Von Raab. In the latter cases, drug tests were upheld not because of the harmful effects of drugs on users, but because users occupied sensitive positions that could jeopardize the health and safety of others. To be sure, the Court in Vernonia maintained that "the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted."[127] Still, this is a far cry from the menace of an engineer who imperils the lives of his passengers because he is impaired by drugs.

In any event, the interest in deterring drug use represents only one side of the balancing equation. Weighed against this factor is the nature of the privacy interest on which the search intrudes. Scalia emphasized how the expectation of privacy is reduced for students who "voluntarily participate in school athletics."[128] Although the drug test was conducted in the course of "an excretory function traditionally shielded by great privacy," the conditions under which the specimen was collected "are nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily."[129] Thus Scalia deemed the privacy interests infringed to be "negligible" and insufficient to outweigh the state's interest in conducting the tests.[130]

Scalia's decision is a strange amalgam. It recited (but did not clearly endorse) the school personnel's accounts of drug abuse. It referred to the general drug scourge as established in Skinner and Von Raab, then found this condition more serious on the principle that drugs exert greater and worse effects on children than on adults. It referred to data that list the negative effects of drugs on performance while only implicitly connecting such findings to any of the problems alleged to infect the athletes in Vernonia. Scalia then asserted without evidence that the drug testing would be efficacious because "it seems to us self-evident that a drug problem largely fueled by the 'role model' effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs."[131]

In fact, according to subsequent interviews with the Vernonia school superintendent, random testing of student athletes turned up only a few positives: tests of about "400 to 500 students" had found "about a dozen" (2.5%-3%) positive results.[132] Moreover, it is possible to attack Scalia's conception that student athletes are those most likely to require ameliorative action by the school and/or government. Other than articles about the effects of drugs on athletic performance, one of the few studies to which Scalia referred was a 1986 paper by Columbia University School of Public Health sociologist Denise Kandel and her colleagues.[133] Their study found that adolescents who continued to abuse drugs were more likely to be divorced, unemployed, and delinquent. But it is a simplification to label drug use as the source of these problems. Kandel's and others' research also indicates that adolescents without positive social and institutional involvements have a greatly heightened susceptibility to drug use in the first place.[134]

According to Grace Barnes of the New York State Division of Alcoholism and Alcohol Abuse, substance abuse "occurs in a network of other problem behaviors... often... linked to problems within the family, including inadequate socialization and withdrawal into peer subcultures where problem behaviors are fostered."[135] Furthermore, while drug use declines with age among most adolescents, those alienated from positive groups and involvements are more likely to continue and to expand their drug use.[136] In other words, drug use is least likely to occur—and most likely to subside—with the kind of individual, such as the student athlete, most engaged in extracurricular activities.

Ginsburg's concurring opinion challenged neither the evils of drug use nor the degree to which urine tests are intrusive. She emphasized only that "the Court's opinion" should be understood as "reserving the question" of whether "all students required to attend school—and not merely those who seek to participate in sports"—could be subjected to drug tests.[137] (Although drug testing of general school populations has been instituted in various places around the country, such policies have not yet been brought to the Supreme Court.)

The O'Connor/Stevens/Souter dissent in Vernonia insisted that the tests were unconstitutional even though it agreed that "it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods,"[138] and that "the record in this case surely demonstrates there was a drug-related discipline problem in Vernonia of epidemic proportions."[139] O'Connor averred that a test based on individualized suspicion would be as effective as the testing of all athletes in Vernonia. Moreover, the dissenters found no good reason to single out athletes for drug testing—"a choice that appears to have been driven more by a belief in what would pass constitutional muster than by a belief in what was required to meet the District's principal disciplinary concern.... The true driving force behind the District's adoption of its drug testing program was the need to combat the rise in drug-related disorder and disruption in its classrooms and around campus."[140] The dissent gave critical weight to the importance of individualized suspicion, even among students, in justifying a search of body fluids. However, it did not challenge the state's interest in combating student drug use as evidenced in Vernonia, which, O'Connor concluded, "seems self-evidently compelling."[141]

Summary and Conclusions

In this paper we have reviewed the six most recent Supreme Court decisions in which at least some of the Justices offered extensive comments on the harms or evils of drug use. The following table summarizes these harms and the evidence provided for them in each case. In the first five cases, the Court upheld punitive actions (drug testing, a lifetime jail sentence without the possibility of parole, the denial of unemployment benefits) within a population (railroad and Customs workers, school student-athletes, practitioners of Native American religion, an individual convicted of cocaine possession) because of the possible or actual harms of drug use. In light of the Court's willingness to infringe upon constitutional rights in order to combat drugs, few predicted the Court's change of direction in Chandler.

The assessment of drug harms by the U.S. Supreme Court
Skinner Train wreck Widespread alcohol use
Von Raab Compromised customs agents None
Harmelin Drug-inspired crime Possession of cocaine
Smith Use/spread of peyote Drug counselors used peyote in Native American church
Vernonia Dangers of adolescent drug use Anecdotes about student athletes using drugs
Chandler Compromised state officials None

These cases identified a diverse range of harms to be prevented by various drug proscriptions. Smith and Harmelin raised concerns about the health risks of drug use for drug users themselves. Skinner and much of Von Raab emphasized the disastrous consequences that drug-impaired persons in sensitive positions might cause to others. Von Raab also described the potential for corruption if persons involved in the enforcement of drug laws were users of drugs. Smith expressed the concern that religion-based exceptions in a scheme of drug proscriptions might increase the availability of drugs in society at large. Harmelin explored the connection between drug use and criminal activity, as well as the evils of addiction. Vernonia invoked the heightened concerns about drug use among adolescents. Perhaps most significantly, each of these cases authorized the state to take action in the absence of clear evidence that any identified drug harm had actually occurred. Small wonder the critics of these judgments believed the state interest in combating drugs to be "merely symbolic."

These cases are diverse. Taken together, they support the following six generalizations:

  1. Each case reflects the heightened concern over drugs that began in the 1980s. Drug use became an overwhelming concern for American society late in the 1980s. For a period of 16 months from 1989 through 1990, a majority of Americans identified drugs as the country's number one social problem.[142] This impelled anti-drug initiatives throughout the government[143] that invariably were supported by the public.[144] The Supreme Court reflected this concern and activity. Skinner, for example, dealt with railroad workers, for whom alcohol was clearly the primary object of abuse. With the advent of the drug scare of the 1980s, however, reasonable concerns about safety and impairment became associated with drugs and were used to justify random urine testing. Drug use among adults (and presumably among railway workers) was declining before the tests were implemented, including in many settings where testing did not occur.[145] The FRA's decision to require these tests, and the Court's approval of them, are best explained by the heightened concern about drug use in society generally.
  2. Evidence of actual drug use in the populations affected was often highly indirect or even nonexistent. Although none of these cases includes clear-cut evidence of the occurrence of the various harms said to be caused by drug use, the absence of evidence of actual drug use was most apparent in Von Raab. No data were presented to establish that Customs workers took drugs or that the alleged harms of drug use (e.g., blackmail, susceptibility to payoffs, or misuse of firearms) had ever taken place. The government's rationale for drug testing, which the Court accepted as compelling, was expressed wholly in the form of hypotheticals. In Smith, O'Connor was willing to characterize as "compelling" the state's interest in protecting the health of ceremonial peyote users, even though no evidence indicated that any of these persons had ever suffered any ill effects from such use. In Vernonia, although a large amount of discussion was directed to the deterioration of student athletes' performance and the risk of potential injuries due to drugs, only one injury was actually described, and its relation to drug use was unproved.
  3. The American drug scourge was supported in subsequent cases by unsubstantiated Court precedents in earlier cases. The Court's allegation in Skinner that drugs are a grave social menace was regularly invoked to bootstrap this conclusion into later decisions despite the lack of supporting data. Von Raab referred to this conclusion in Skinner and then itself became the touchstone for all further decisions linked to a proposed national drug scourge. The original basis for this conclusion, however, is obscure and unsubstantiated.
  4. Citations of data about drug use and about the effectiveness of proposed measures to deter it are selective and uncritical. The Justices made little reference to data on the incidence of drug use—none to national drug use statistics, almost none to drug use by the populations involved in the cases under discussion, and none to the epidemiology of drug abuse/addiction and its relation to drug use. Moreover, almost no evidence was evaluated about the efficacy of drug-testing programs or of any other remedy allowed in any of these cases. On the few occasions when the Justices cited social science studies—for example, research on adolescent drug use/abuse and on the connection between drugs and crime— their interpretations of the data are dubious.
  5. Critical stances about drug policies were adopted in dissenting opinions. In one case or another, several Justices—Marshall, Brennan, Stevens, Scalia, Blackmun, White, O'Connor and Souter—expressed serious reservations about the challenged drug proscription/penalty/test. The five cases upholding drug regulation produced four noteworthy dissents. Scalia gave an incisive critique of the imaginary basis of the harms to be prevented by drug testing of Customs workers in Von Raab. O'Connor, who had previously accepted random drug testing on the flimsiest of pretexts in Von Raab and had subsequently contended that the need to deny peyote to Native Americans was of compelling significance, stood strong in Vernonia for the intrusive nature of urine testing and its violation of Fourth Amendments guarantees—even in the case of school children. Perhaps the most noteworthy Supreme Court opinion on drug use and harms was written by Blackmun. His exploration of the nature, meaning, and consequences of drug use in connection with Native American ceremonies is thorough and informed. White's dissent in Harmelin was valuable and insightful in questioning the drug use-crime connection, albeit by resorting to largely mythical assumptions about the relationship between cocaine use and addiction. Significantly, none of these skeptical positions was able to attract a majority, and each has remained isolated to the case in which it appeared.
  6. Acceptance of the drug menace was unanimous among Supreme Court Justices. Despite the skepticism expressed in these dissenting opinions, no Justice emerges as a consistent critic of America's drug policies. Even those Justices who might have been thought most likely to resist anti-drug measures—such as Marshall and Brennan—were inclined to base their reservations on grounds that seem more procedural than substantive. Marshall, like other Justices, typically prefaced his objections by indicating his belief in the dire and imminent dangers of drug use. With the retirements of Marshall, Brennan and Blackmun, no Justice seems inclined to adopt a consistently skeptical position toward the legitimacy of government actions against drug users.

Throughout its recent decision-making in relation to drugs, the Supreme Court has accepted unlikely and unsubstantiated bases for upholding proscriptions against drugs. It is not surprising that the Court simply reflects popular prejudices about drugs that have become ensconced in national law and policy. Perhaps, then, the Court's shift in Chandler v. Miller is sui generis. The basis for the Court's change of direction certainly cannot be found in the previous decisions examined here. The view in Chandler that a state governor or attorney general or treasurer who is addicted to drugs is not as dangerous to society as a Customs worker is difficult to defend. Yet the case attracted a greater majority—eight Justices, with only Rehnquist in dissent—than any that preceded it. What may ultimately be most significant about the shift in Chandler is the Court's omission of its standard ritualistic intonation of the dangers that drugs represent as, according to Rehnquist's dissent, "one of the major problems of our society." The invocation of this phrase seemingly signals the kind of symbolic sacrifice of civil liberties that Chandler disavowed. Whether this identifies an entirely new perspective and, moreover, methodological care in assessing drug harms remains to be seen.


1. 137 L.Ed.2d 513 (1997). (back)

2. Id. at 528. (back)

3. 489 U.S. 656 (1989). (back)

4. Chandler at 524. (back)

5. Id. at 526. (back)

6. Id. at 529 (Rehnquist dissent). (back)

7. Id. at 526. (back)

8. Id. at 529 (Rehnquist dissent). (back)

9. See Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure (Boston: Little, Brown, 1996); Stephen B. Duke and Albert C. Gross, America's Longest War: Rethinking Our Tragic Crusade Against Drugs (New York: G.P. Putnam's Sons, 1993); Douglas Husak, Drugs and Rights (New York: Cambridge University Press, 1992); Ethan Nadelmann, "Experimenting with Drugs," 77: 1 Foreign Affairs 111 (January 1998); Karin Swisher, Legalizing Drugs (Greenhaven, CT: Greenhaven Press, 1996). The severity of penalties for drug offenders is challenged in the criminal area by "Cruel and Usual: Disproportionate Sentences for New York Drug Offenders," 9:2 Human Rights Watch (March 1997) and in the civil area by Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? (Washington, DC: Cato Institute, 1995). (back)

10. Douglas Husak: "Desert, Proportionality, and the Seriousness of Drug Offenses," in Andrew Ashworth and Martin Wasik, eds., Fundamentals of Sentencing Theory (Oxford: Oxford University Press, forthcoming); Stanton Peele, "Assumptions About Drugs and the Marketing of Drug Policies," in Warren K. Bickel and Richard J. DeGrandpre, eds., Drug Policy and Human Nature (New York: Plenum, 1995), pp. 199-220. (back)

11. Richard H. Blum: "A Background History of Drugs," in Richard H. Blum and Associates, eds., Drugs 1: Society and Drugs (San Francisco: Jossey-Bass, 1969), p. 12. See also Rufus King, The Drug Hang-up: America's Fifty Year Folly (New York: Norton, 1972); David Musto, The American Disease: Origins of Narcotic Control (New Haven: Yale University Press, 1987); Arnold S. Trebach, The Heroin Solution (New Haven: Yale University Press, 1982). A critical example is the Harrison Act, passed in 1914. Although a revenue law, it was enforced and interpreted as essentially making narcotic use and addiction illegal. Casey v. United States, 276 U.S. 413 (1928). (back)

12. James Q. Wilson, "Against the Legalization of Drugs," 89 Commentary 21, 26 (1990). (back)

13. Carmona v. Ward, 576 F.2d 405, 411-412 (2d Cir. 1978). (back)

14. White House Executive Office of the President, The National Drug Control Strategy, 1995 (Washington, DC: Office of National Drug Control Policy, 1995) p. 29. (back)

15. Ethan Nadelmann, "Experimenting with Drugs," supra note 9. (back)

16. A. Ball, D. DesJarlais, M.C. Donoghoe et al., Multi-centre Study on Drug-Injecting and Risk of HIV Infection (Geneva: World Health Organization Programme on Substance Abuse, 1995); School of Public Health, University of California, et al., The Public Health Impact of Needle Exchange Programs in the United States and Abroad (Atlanta: Centers for Disease Control and Prevention, 1993). (back)

17. See U.S. v. Madkour, 930 F.2d 234 (2d Cir. 1991); U.S. v. Stockton, 968 F.2d 715 (9th Cir. 1992). (back)

18. In drug contexts, see NORML v. Bell, 488 F.Supp. 123 (1980); State v. Murphy, 117 Ariz. 57 (1977). (back)

19. See Romer v. Evans, 116 S.Ct. 1620, 1627 (1996). (back)

20. Until very recently, these tests have been nearly "outcome determinative"—i.e., the level of scrutiny has all but dictated the result. (back)

21. Courts sometimes subject legislation to a level of scrutiny that is "intermediate" between the compelling state interest and the rational basis tests described here. Such intermediate tests have occasionally been applied in drug contexts. A "close and substantial" relationship between a drug law and its legislative objectives was invoked to test the constitutionality of a criminal statute proscribing the private use of marijuana in Ravin v. State, 537 P.2d 494 (1975). (back)

22. See Adarand Constructors Inc. v. Pena, 115 S.Ct. 2097, 2113 (1995). (back)

23. Although it seems hard to understand how a court could weigh the importance of an interest against competing values unless the nature of that interest was identified, courts frequently fail to question the legitimacy of governmental purposes. See Ashutosh Bhagwat, "Purpose Scrutiny in Constitutional Analysis," 85 California Law Review 297, 307 (1997). (back)

24. See, for example, T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," 96 Yale Law Journal 943 (1987); Richard Fallon, "Individual Rights and the Powers of Government," 27 Georgia Law Review 343 (1993). (back)

25. In upholding prohibitions and penalties on the use of various drugs, the Court has often referred to medical, psychological, or other societal harms that result from using drugs. These claims can be scrutinized empirically and contested on the grounds that the evidence does not justify the penalties imposed. See Stanton Peele, The Meaning of Addiction: Compulsive Experience and Its Interpretation (Lexington, MA: Lexington Books, 1985); Norman Zinberg, Drugs, Set, and Setting: The Basis for Controlled Intoxicant Use (New Haven, CT: Yale University Press, 1984). (back)

26. Stephen Wisotsky, "Not Thinking Like a Lawyer: The Case of Drugs in the Courts," 5 Notre Dame Journal of Law, Ethics and Public Policy 651 (1991). (back)

27. 489 U.S. 602 (1989). (back)

28. Railway Labor Executives' Association v. Burnley, 839 F.2d 575 (1988). (back)

29. Thus Skinner began the controversial trend in "special needs" analysis. See Jennifer Buffaloe, " 'Special Needs' and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule," 32 Harvard Civil Rights—Civil Liberties Law Journal 1151 (1992). (back)

30. Skinner at 606. (back)

31. Id. at 607, n. 1. (back)

32. Ibid. (back)

33. Id. at 608. (back)

34. Id. at 607, n. 1. (back)

35. Id. at 608. (back)

36. Id. at 607-608. (back)

37. Von Raab at 674. (back)

38. Skinner at 625. (back)

39. Id. at 628. (back)

40. Ibid. (back)

41. Id. at 620-621. (back)

42. Id. at 628. (back)

43. Thus it is not a surprise that identical allegations have led lower federal courts to reach different outcomes in balancing the state's interest against individual rights. See Laura Lundquist, "Weighing the Factors of Drug Testing for Fourth Amendment Balancing," 60 George Washington Law Review 1151 (1992). (back)

44. Id. at 634. (back)

45. Id. at 635. (back)

46. Id. at 636. (back)

47. Id. at 684. (back)

48. 489 U.S. 656 (1989). (back)

49. 649 F.Supp. 380 (1986). (back)

50. 816 F.2d 170 (1987). (back)

51. Von Raab at 665. (back)

52. Id. at 666. (back)

53. Id. at 670. (back)

54. Id. at 671. (back)

55. Id. at 664. (back)

56. Ibid. (back)

57. Id. at 670. (back)

58. Id. at 673. (back)

59. Id. at 674. (back)

60. Id. at 679-680. (back)

61. Id. at 681. (back)

62. Id. at 681-683. (back)

63. Id. at 686. (back)

64. Id. at 687. (back)

65. Id. at 680. (back)

66. Id. at 668 (quoting U.S. v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)). (back)

67. Id. at 674. (back)

68. 494 U.S. 872 (1990). (back)

69. Id. at 888. (back)

70. Id. at 885. (back)

71. 42 U.S.C. 2000(bb)-(1). (back)

72. Id. at 904. (back)

73. Ibid. (back)

74. Id. at 905. (back)

75. Ibid. (back)

76. Ibid. (back)

77. For discussion, see Richard Sherwin, "Rhetorical Pluralism and the Discourse Ideal: Countering Division of Employment v. Smith, A Parable of Pagans, Politics, and Majoritarian Rule," 85 Northwestern University Law Review 388 (1991). (back)

78. Smith at 911. (back)

79. Ibid. (back)

80. Id. at 916. (back)

81. Ibid. (back)

82. Id. at 913. (back)

83. Id. at 911. (back)

84. Ibid. (back)

85. Id. at 911-912. (back)

86. Many of his points, however, could easily be extended to other drugs. LSD, for example, is not generally used compulsively, has no appeal for most people, does not lead to large-scale drug importation, and has in some cases been found to have therapeutic value. See Lester Grinspoon and James Bakalar: Psychedelic Drugs Reconsidered (New York: Lindesmith Center, 1997). (back)

87. Id. at 908. (back)

88. 501 U.S. 957 (1991). (back)

89. Courts have sometimes found proportionality guarantees in regard to penalties in drug convictions in their state constitutions. See, for example, Louisiana v. Merrill, 650 So.2d 793 (1995) (25-year prison term unconstitutional for selling one rock of crack); People v. Lorentzen, 387 Mich. 167 (1972) (20-year prison term for sale of any quantity of marijuana is cruel and unusual). That part of the statute denying eligibility for parole upheld by the Supreme Court in Harmelin was struck down by the Michigan Supreme Court in Michigan v. Bullock, 440 Mich. 15 (1992). (back)

90. Harmelin at 957. (back)

91. See Mark Curriden, "No Mercy: Should Drug Pushers Get Mandatory Life Sentences?" American Bar Association Journal 64 (March 1991). (back)

92. Id. at 1003. (back)

93. Id. at 1002. (back)

94. Ibid (back)

95. Ibid. (back)

96. Id. at 1002-1003. (back)

97. Id. at 1003. (back)

98. Id. at 1027. (back)

99. Id. at 1022. (back)

100. Id. at 1023-1024. (back)

101. Id. at 1023. (back)

102. Id. at 1024. (back)

103. Ibid. (back)

104. Id. at 1022. (back)

105. Id. at 1022-1023. The reference is to Robinson v. California, 370 U.S. 660 (1962), in which the Supreme Court held that a state law outlawing the condition of drug addiction was unconstitutional. This was the last Court decision to overturn a drug law prior to Chandler. The potential impact of Robinson, however, was quickly limited by Powell v. Texas, 392 U.S. 514 (1968). (back)

106. Id. at 1002 (emphasis added). (back)

107. In his dissent, Justice Oakes criticized the majority for emphasizing the general evils of drugs without regard for the actual crimes of the defendants. Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978). (back)

108. See Douglas Husak, "The Nature and Justifiability of Nonconsummate Offenses," 37 Arizona Law Review 151 (1995). (back)

109. Paul J. Goldstein, "The Drugs/Violence Nexus: A Tripartite Conceptual Framework," 39 Journal of Drug Issues 143 (1985). (back)

110. Peter Cohen and Arjan Sas, "Cocaine Use in Amsterdam in Non Deviant Subcultures," 2 Addiction Research 71 (1994); Patricia G. Erickson and Bruce K. Alexander, "Cocaine and Addictive Liability," 3 Social Pharmacology 249 (1989); Sheigla Murphy, Craig Reinarman, and Dan Waldorf, "An 11 Year Follow Up of a Network of Cocaine Users," 84 British Journal of Addiction 427 (1989). (back)

111. National Institute on Drug Abuse, National Household Survey on Drug Abuse: Population Estimates 1995 (Bethesda, MD: Alcohol, Drug Abuse, and Mental Health Administration, 1996). (back)

112. Erickson and Alexander, supra note 110. (back)

113. Norbert Gilmore, "Drug Use and Human Rights: Privacy, Vulnerability, Disability, and Human Rights Infringements," 12 Journal of Contemporary Health Law and Policy 412 (1996). (back)

114. Ibid. (back)

115. Harmelin at 1002. (back)

116. 115 S.Ct. 2386 (1995). (back)

117. 796 F. Supp. 1355. (back)

118. 23 F.3d 1514 (1994). (back)

119. The majority indicated that the state's interest in drug tests was "perhaps compelling." Vernonia at 2395. But the Court also indicated that the compelling state interest test need not be satisfied. Id. at 2394. (back)

120. Id. at 2395. (back)

121. Id. at 2395. (back)

122. Id. at 2388. (back)

123. Id. at 2389. (back)

124. Ibid. (back)

125. Ibid. (back)

126. Id. at 2395. (back)

127. Ibid. (back)

128. Id. at 2393. (back)

129. Ibid. (back)

130. Ibid. (back)

131. Id. at 2395-2396. (back)

132. Aaron Epstein, "Questions in School Drug Testing Case: Privacy Versus Protection," The Houston Chronicle, March 19, 1995, 44. (back)

133. Denise B. Kandel, et al., "The Consequences in Young Adulthood of Adolescent Drug Involvement," 43 Archives of General Psychiatry 746 (1986). (back)

134. Richard Jessor and Shirley L. Jessor, Problem Behavior and Psychosocial Development (New York: Academic Press, 1977). (back)

135. Grace M. Barnes and Marie Windle, "Family Factors in Adolescent Alcohol and Drug Abuse," 14 Pediatrician 14, 17 (1986). (back)

136. Denise B. Kandel, "Marijuana Users in Young Adulthood," 41 Archives of General Psychiatry 200 (1984); Jerald G. Bachman, Kathenne Wadsworth, Patrick M. O'Malley, Lloyd D. Johnston, and John Schulenberg, Smoking, Drinking, and Drug Use in Young Adulthood (Ann Arbor, MI: University of Michigan, 1997). (back)

137. Vernonia at 2397. (back)

138. Id. at 2400. (back)

139. Id. at 2406. (back)

140. Ibid. (back)

141. Ibid. (back)

142. "Drug War Underlines Fickleness of Public," The New York Times, September 6, 1990, A22. (back)

143. Susan F. Rasky, "For Its War, Congress Is Brimming With Combative Ideas," The New York Times, July 10, 1988, A5. (back)

144. Michael Wines, "Poll Finds Public Favors Tougher Laws Against Drug Sale and Use," The New York Times, August 15, 1989, A14. (back)

145. For example, drug use by high school seniors declined dramatically from highs in 1979-81 until 1992; see Lloyd D. Johnston, Patrick M. O'Malley, and Jerald G. Bachman, National Survey Results on Drug Use: The Monitoring the Future Study, 1975-1996 (Rockville, MD: U.S. Department of Health and Human Services, 1997). (back)