STATES' RIGHTS—TURNED INSIDE OUT
CASE IN POINT
It's no longer the feds who guard individual rights... by Bob LaBrasca
A Monthly Report on Drugs and the Law Written in consultation with Kevin Zeese, NORML Chief Counsel
REMEMBER GOV. GEORGE WALLACE standing in the schoolhouse door, fighting a lonely battle for "states' rights"?—specifically the right of Alabama to deny civil rights to her black citizens, despite the edicts of Earl Warren's Supreme Court.
That was two decades ago; now everything's turned inside out. The NixonReagan court, under Chief Justice Warren Burger, has slammed on the brakes of the Freedom Train and shifted it into reverse gear. And even as the U.S. Supreme Court seems bent on gutting the Bill of Rights, state justices have been cast as guardians of civil liberties. Fred Barbash of the Washington Post, reporting on a recent conference of the National Center for State Courts, observed that this trend toward liberal independence at the state level has taken on "the look of an organized movement." Freedoms of speech and the press, prohibitions against discrimination on the basis of sex or economic status and the rights of defendants in criminal cases are faring far better in a number of states than they are in the federal judicial system.
This provides a glimmer of hope for some of America's 30 to 60 million potential drug defendants, specifically those who may be charged under state statutes. The scapegoating of drugs as the fundamental cause for moral decay and crime in America has been a crucial element of Reagan-era ideology; it eliminates the need to address certain bothersome issues like poverty and the inherent illusions of the American Dream. Conservative appointees on the federal bench have embraced this line wholeheartedly and have cooperated by bestowing ever greater powers on police, so that they may intrude into the private lives of citizens to ferret out drug crime. State courts, however, have been generally reluctant to follow that course.
In Alaska, the state supreme court has retained enough faith in the sancti-
ty of the American home to still hold that the cultivation of personal-use quantities of marijuana in a residence is beyond police authority. In most states, entrapment—an issue in a great many drug cases—is still a viable defense, while in the federal courts the doctrine of "predisposition" has made it a virtual nonissue. And the "exclusionary rule"— that favored arrow in the drug lawyer's quiver—though still strong in most states, seems destined to be weakened severely in the federal system within the year.
Patrick Bishop, editor of Criminal Law Monthly, sends along a case from, of all unlikely places, Mississippi, that illustrates the relatively enlightened posture of even that state's supreme court (and sheds some light on the faithless relationship between narc and snitch):
One Tony Penick, an informant for the federal Drug Enforcement Administration, unexpectedly encountered his own control agent in the Jackson Municipal Airport, the story goes. The agent, with little more "probable cause" than Penick's nervousness and the fact that he'd just got off a plane from Fort Lauderdale, had Penick detained and strip-searched, and went through his luggage, where he found two pounds of marijuana. Penick was convicted of possession by the trial court, but the Mississippi Supreme Court reversed, because the evidence was seized after an illegal arrest. This they did in accordance with Section 23 of the Mississippi Constitution, which is virtually identical to the U.S. Constitution's Fourth Amendment.
It is certainly possible that Penick would have prevailed even if he had been charged in federal court, but the high justices of Mississippi made it quite clear in their decision that they didn't care a fig what a federal court would have done. Firmly, if somewhat awkwardly, they wrote:
"The words of our Mississippi Con-
stitution are not balloons to be blown up or deflated every time, and precisely in accord with the interpretation the U.S. Supreme Court, following some tortuous trail, is constrained to place upon similar words in the U.S. Constitution."
And they came out four-square for the exclusionary rule: "This Court is thoroughly committed to the proposition that an illegal arrest renders a subsequent search inadmissible."
In Mississippi, mind you!
Encouraging; though Barbash, in his report on the state-court conference, notes that "relatively few lawyers are even familiar with their state constitutions." That may be true, but according to Alan Silber, who practices defense law in New York and New Jersey, "That's changing. Very, very rapidly." Silber has been following the trend toward greater civil-liberties protections in state law for several years and has addressed NORML-affiliated attorneys on that very issue. More and more universities, Silber says, are offering courses in state constitutional law, and lawyers feel compelled to bone up on state protections since the winds have shifted against defendants' rights in federal courts. He points out, though, that no one who gets busted has a choice as to where he will be tried; in a case where the option exists, prosecutors decide whether to file charges in state or federal court. A defense attorney in a state case, however, can choose to make his arguments on the basis of state constitutional principles, if the relevant state precedents are more auspicious than the federal ones.
So, in view of the fact that a great many lawyers are just now educating themselves about state constitutional defenses, might it not be wise for a client/defendant to remind his advocate to examine the protections available at the state level?
"It couldn't hurt," says Alan Silber "It couldn't hurt." □