Counterfactual: Without the “War on Drugs” what would Constitutional Law look like today?

How many criminal procedure cases arose based on investigations, interrogations, arrests, trials, prosecutions,  and incarcerations of defendants on drug charges? Without the “War on Drugs” how would 4th, 5th, and 6th amendment jurisprudence have evolved? Same? Different? Even if the same procedural irregularities occurred in a crime not involving drugs, and were considered by the Supreme Court, would courts have treated them differently?

What about other areas of the law? Sentencing? Habeas? Civil Rights and 1983 actions?

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4 Responses

  1. great unknown says:

    no-knock warrants [and the corollary murders of innocent people]

  2. Brett Bellmore says:

    Less effort to suppress jury nullification, as well as less effort to promote it?

  3. Orin Kerr says:

    I’m not sure what difference it would have made, at least without knowing what cases would have been litigated if those cases were not present. If there had been no drug cases, would the same issues have been litigated more often in murder cases? Rape cases? Terrorism cases? Misdemeanor theft cases? Or would they not have been litigated at all?

  4. Brett Bellmore says:

    I believe the main reason the war on drugs, (And Prohibition before it.) have had a deleterious effect on civil liberties, is that victimless crime laws are inherently difficult to enforce by normal, non-abusive police methods. Nobody directly involved in the transactions wants the laws enforced.

    Now, non-metaphorical war has some similar effects, (See the Japanese internment for an example.) and so you might expect terrorism to cause a similar erosion. (Indeed, classically that erosion is one of the goals of terrorism!) But the war on terror is recent enough that the erosion wouldn’t have proceeded very far.

    One big difference you’d expect, would be far less reliance on no-knock searches, which are (nominally) justified on the basis that speed is needed to prevent destruction of evidence. So we might expect that, absent the war on drugs, the state of the law would be less friendly to police busting in without given due notice of the warrant. Probably less tolerance of police creating “exigent circumstances” themselves, too.