Seventh and Eighth Amendments
Next on our list is the Eighth Amendment, which guarantees that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Well surely any punishment is cruel for a victimless crime. Conservatives might say this is a liberal reading of the Amendment. But at the time the Bill of Rights was adopted, prisons as we know them hardly existed, and the notion of imprisoning someone for ten years for growing hemp, on which the Constitution was drafted, would have been seen as quite cruel and quite unusual. In the 1970s and 1980s, Congress passed mandatory minimum laws which reduce the discretion of judges in handing out sentences – almost all such federally determined sentences are for drugs or guns.
The average sentence in federal prison for drug trafficking is longer than for sexual abuse. The burgeoning prison state is one of the most horrifying features of modern American history, with the drug war playing a huge part. About one in four or five Americans prisoners are there for non-violent drug offenses – acts that were totally legal in the nineteenth century. Before Reagan stepped up the drug war, there were half a million Americans in prison or jail, and another 1.5 million on parole or probation. There are now more than two million behind bars and seven million total in the correctional system. Prisons grew by 500 percent from 1982 to 2000 in my state of California.
One out of four or five prisoners are there for drugs alone. And for their non-crime, they are sentenced to a personal totalitarianism: Gang violence, an alarming frequency of prison rape, beatings and sometimes death. Americans by the hundreds of thousands who have never raised a finger against anyone are in constant fear of being abused and turned into slaves by their cellmates. How any American can think this is in any way consistent with civilized society boggles the mind.
Bail is often ridiculously high for drug war victims – $1 million or more. The advent of asset forfeiture – whereby the government confiscates your property and essentially accuses it of being guilty of a civil offense – has become an effective way to circumvent the "excessive fines" clause.
What about the Seventh Amendment? It reads: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
I mentioned civil asset forfeiture. It is important to recognize that there is no criminal hearing for the vast majority of forfeiture victims. The property is seized through civil litigation. But since the property itself, and not the owner, is on trial, the Bill of Rights offers no protection. There’s no right to a trial. If a person wants to reclaim his confiscated property, he must ask for a trial. If the court rules that the property be returned, the government can ask for another one, or merely make return of the property contingent upon the victim paying tens of thousands of dollars in fines.
You might be a charter pilot who has his plane taken as part of a drug investigation, and be unable to pay the six grand to get your plane back after being bankrupted by the legal system. This happened to Billy Munnerlyn in the early 1990s. You could be the wrong color or have the wrong amount of cash on you and lose it all to confiscators who get to keep a cut of what they steal.
One point of the Seventh Amendment was to protect the rights of Americans to sue government officials for wrongdoing, and have a fair trial – not the type of mock trial the Founders saw used by the British Crown to let their officials off easy. The drug war has turned this entire idea on its head. Now the government can just take your property without charging you and all you can do is hope that it lets you make your case in a fixed sham proceeding that you are innocent.