Gavin R. Putland,  BE PhD

Wednesday, July 27, 2016 (Comment)

The reverse onus of proof for drug possession is contrary to the rule of law and therefore unconstitutional in all jurisdictions

The existence of a constitution, written or unwritten, presupposes the rule of law and therefore renders unconstitutional any attempt, by any means, to subvert the rule of law. The existence of a court presupposes the rule of law and therefore precludes the court from entertaining any proposition incompatible with the rule of law. No legislative body can suspend the rule of law, because the legislative power is merely the power to make law, which by definition must be compatible with the rule of law. Thus the rule of law is binding at all times in all jurisdictions (indeed, the very word jurisdiction implies the rule of law), and its implications are enforceable in court.

And what are its implications?

As a minimum, the rule of law requires certainty and rationality. Certainty is the ability to know what we must do, and what we must refrain from doing, in order to stay out of trouble with the authorities. Rationality means, at least, logic and consistency of application, without which certainty would be denied. Certainty and rationality require that, in the words of A.V. Dicey, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.” Dicey's dictum is partly expressed in the Fifth Amendment to the U.S. Constitution, which declares that no person shall be “deprived of life, liberty, or property, without due process of law”. The Fourteenth Amendment imposes the same constraint on State law.

As the arbitrary decisions of men are neither certain or necessarily rational, the rule of law further implies that, in the words of the Constitution of Massachusetts, we are under “a government of laws and not of men.”

Of course, knowing what we must do or refrain from doing is useless if the required action or omission is impossible. In practice, therefore, the rule of law implies that the law cannot demand the impossible. This is independently obvious; a law that demands the impossible cannot be obeyed and therefore cannot be said to rule.

My contention is not that the requirements of the rule of law are necessarily written into any document called the Constitution (although they may be). Rather, my contention is that the requirements of the rule of law are the minimum requirements of constitutionality, without which any written or unwritten constitution can be undermined.

The defining tactic of the global war on drugs is the reverse burden 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 reversed 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 sufficient evidence — or would be, except that the arrangement is unconstitutional in all jurisdictions, being a breach of the rule of law.

This reversal of the onus of proof breaches the rule of law by

  • depriving us of certainty, as we cannot be sure that we will not be victims of planted evidence (see below),
  • defying rationality, in that one person can be held responsible for the unwanted and unpredictable actions of another,
  • placing us under a “government of men” — in particular, a government of those who are willing and able to plant evidence — and
  • demanding the impossible, namely that we control what other people do to us, when in fact we can only control what we ourselves do.

Moreover, this reversal of the onus of proof makes it especially easy to undermine specific provisions of the constitution, which is enough by itself to make the reversal unconstitutional. Numerous constitutional provisions have factual conditions attached. Any such provision could be circumvented if the state, or any other party, by exploiting a reverse onus of proof, could deem the relevant facts to be other than what they are. More specifically, any right or prerogative that the constitution grants in the absence of a criminal conviction could be circumvented if the state, or any other party, by exploiting a reverse onus of proof, could obtain a conviction against an arbitrarily or conveniently chosen victim. To avoid this reductio ad absurdum, there must be an implied constitutional limit on reversals of the onus of proof. While it is not necessary for present purposes to specify exactly where that limit lies, it is clear that the limit is breached if the state, or any other party, can procure a conviction by the simple expedient of planting evidence.

The breach 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. At the trial, another former detective who had been caught planting evidence testified that such behavior was common and that it was motivated by arrest quotas. 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. In February 2014, a former Philadelphia narcotics officer pleaded guilty to stealing $15,000 in drug money and planting drugs in a suspect's car. He later testified that his unit stole money and planted evidence “too many times to count”, and that he had committed thousands of crimes while on duty.

Proving that drugs were planted needs a stroke of luck for the victims, or exceptional incompetence from the perpetrators. We must therefore presume that most cases of planting evidence go unproven, with the result that the victims are wrongly convicted. The purported reversal of the burden of proof not only facilitates framing, but also motivates 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 rule of law and a loophole through specific provisions of the constitution.

Those whose jobs depend on the war-on-drugs industry will claim that the reversed onus of proof is an essential weapon. That is nonsense. If it were impossible to obtain convictions for mere possession of drugs, 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 (“street”) 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 getting a criminal record for buying or possessing.

Consider the economics of the problem. To discourage use of drugs, we want retail prices to be high. To discourage production and trafficking, we want upstream prices to be low, so that concealable quantities are not valuable enough to be worth producing or trafficking. If law enforcement puts a bottleneck in the supply chain, it raises prices downstream of the bottleneck, and lowers prices upstream. If we put the bottleneck at the retail level, we get the price signals that we want. Further upstream, law enforcement should be just strong enough to maintain the need for concealment: if possession of any quantity of prohibited drugs were a summary offense punishable solely by confiscation, with no conviction recorded, that would be enough — and would also remove any risk of wrongful convictions based on possession alone.

Stronger action upstream sends the wrong price signals. Breaking up a drug syndicate raises prices for the benefit of downstream dealers and competing syndicates. Taking out a wholesaler raises prices for the benefit of retailers and other wholesalers. Eliminating an importer raises prices within the country for the benefit of domestic producers, retailers, and other importers. Eliminating an exporter raises prices in the rest of the world for the benefit of all suppliers to that market. Obviously the benefits of price rises are greatest for dealers who hold stockpiles, but all dealers gain when a given value of contraband becomes smaller and easier to conceal. Deterring exports reduces domestic prices; but if this is not compensated by disrupting retail sales, the price reductions reach all the way to the streets, encouraging drug use in one's own country. These futile actions become too easy and too common if they can be occasioned by mere possession.

In contrast, to deter retail sales is to send precisely the right price signals; and to cut off retail sales altogether is to de-fund the whole industry. But these strategies require resources to be concentrated on sales, not possession.

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. This is not strictly jury nullification, in which the jury acts as a final legislative house of review for a single case, or as a substitute for executive discretion or clemency. Rather, it is an example of the jury acting in a properly judicial role as the interpreter of (constitutional) law, and finding that the reversal of the onus of proof is beyond the legislative power. But even if it were a true example of jury nullification, I would still advocate it on the ground that justice demands it. And to anyone who disagrees, I say: May it please G-d that drugs are found in your possession, and that you are judged by your own rules (Proverbs 26:27; Matthew 7:2; Galatians 6:7).

[Last modified November 29, 2016. An earlier version of this article was submitted in reply to John Adams and reposted at Catallaxy Files.]

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