Gavin R. Putland,  BE PhD

Tuesday, April 02, 2013 (Comment)

War on drugs breaches separation of powers

The defining feature of the global war on drugs is the reverse onus of proof: if prohibited drugs are found on your premises or among your belongings, and if you had no knowledge of the drugs, legislation requires you to prove your innocence. Whether the reverse burden of proof is a "legal burden" (proof on the "balance of probabilities" or the "preponderance of evidence"), or merely an "evidential" or "evidentiary" burden, there is no guarantee that an innocent person will be able to satisfy it. Thus the power to convict is effectively given to those who are willing and able to plant suitable evidence. This is clearly unconstitutional because it violates the separation of powers, according to which the power to convict is a judicial power and is vested exclusively in the courts.

The violation is most egregious when the evidence is planted by officers of the executive branch. In October 2011, a New York detective was convicted of planting drugs on an innocent couple. In December 2011, in Haskell, TX, a former police officer pleaded no contest to planting drugs in a car. In April 2012, the State of New Jersey was busy settling lawsuits after four Camden police officers were convicted of planting evidence. These are some of the known cases. The number of actual cases is greater by an unknown margin. The reverse onus of proof increases the ratio of unknown cases to known cases, not only by facilitating framing, but also by motivating drug traffickers to arrange for the drugs to be in the possession of some unsuspecting person, who will take the rap if anything goes wrong.

That said, the unconstitutionality of the reverse onus of proof does not depend on the premise that anyone would actually plant evidence -- just as the prohibition on a judge deciding a case in which he/she has an interest does not depend on the premise that any judge would actually succumb to bias. The mere feasibility of an accuser obtaining a false conviction by performing certain acts, like the mere feasibility of an interested party deciding a case in his/her favour, is a violation of the separation of powers.

What if the constitution of a particular jurisdiction does not prescribe a strict separation of powers? Then the mere existence of a written or unwritten constitution, or of a court, implies the rule of law. If the executive power is to be kept under the rule of law, it must not be able to make laws or decide cases in its own favour, wherefore the legislative and judicial powers must be separate from the executive power. If the legislative power is to be kept within the limits imposed by the rule of law (or by the constitution), it must not be the judge of whether it has exceeded those limits, wherefore the legislative and judicial powers must be separate from each other. Thus the rule of law implies the separation of powers.*

In Australia, State courts are vested with federal jurisdiction and the federal constitution has a strict separation of powers. Hence one can argue that the observance of the separation of powers by a State court exercising State jurisdiction, if not explicitly required by the State constitution, is required by the institutional integrity of the court within the federal system.

The rule of law further implies that we are under a "government of laws", not a "government of men". But the reverse onus of proof would place us under a government of men, namely those who are willing and able to plant sufficient evidence. Thus the reverse onus of proof is unconstitutional not only in jurisdictions with an explicit separation of powers, but in all jurisdictions.

When the reverse onus of proof is declared unconstitutional, obtaining convictions for drug possession will become more difficult, but not impossible. That is unfortunate because if it were indeed impossible to convict anyone for mere possession, law enforcers would be obliged to focus on sales, which is precisely what they should be doing anyway. In particular, they should be focusing on retail sales, because that is where all drug profits ultimately come from. Furthermore, it would be much easier to get evidence on retail sales if the most numerous witnesses, namely the customers, were not at risk of being prosecuted for mere possession.

When the authorities break up a drug syndicate, they raise prices for the benefit of other syndicates by taking out a competitor. When they catch a drug wholesaler, they raise prices downstream for the benefit of retailers. When they catch an importer, they raise prices within the country for the benefit of retailers, other importers and domestic producers. When they catch an exporter, they raise prices in the rest of the world for the benefit of all suppliers to that market. If they deter exports, they reduce domestic prices; and if they don't compensate by disrupting retail sales, the price reductions reach all the way to the streets, encouraging drug use in their own country. But if they deter retail sales, they raise retail prices to discourage consumption, while reducing wholesale prices to discourage production, importation and distribution. And if they cut off retail sales, they de-fund the whole industry.

Making it harder to get convictions for mere possession will nudge the enforcers in the right direction. Making it impossible would be more persuasive. Does that mean legalizing possession? Not necessarily. Making possession a summary offense punishable solely by confiscation, with no conviction recorded, would suffice.

So, if you are on the jury in a drug trial, and if you are told that the defendant must prove that he/she knew nothing about the drugs, it is your civic duty to put the onus of proof back where it belongs (on the prosecution), raise it to the proper standard (beyond reasonable doubt), and reach a verdict accordingly. To anyone who disagrees, I say: May it please God that drugs are found in your possession, and that you are judged by your own rules (Proverbs 26:27; Matthew 7:2).

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* This reasoning does not tell us to what extent the executive branch can be answerable to, or drawn from, the legislative branch; thus it neither endorses nor rejects a parliamentary or Westminster system per se, although it does warn against tight party discipline that results in a domination of Parliament by the Executive.

[Last modified May 20, 2013.]


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