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Substantive Credited Process Analysis of the Incarceration of Drug Offenders

A. Framework

In Washington v. Glucksberg, Chief Justice Rehnquist referred to the framework for substantive credited process analysis:

Our established method of substantive-due-process evaluation has two primary features: First, we've regularly observed that the Thanks Process Clause specifically protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," in a way that "neither liberty nor justice would exist if indeed they were sacrificed." Second, we've required in substantive-due-process situations a "careful description" of the asserted fundamental liberty interest. Our Nation's history, legal traditions, and procedures thus provide the crucial "guideposts for accountable decisionmaking," that direct and restrain our exposition of the Due Process Clause. As we mentioned recently in Flores, the Fourteenth Amendment "forbids the federal government to infringe . . . 'fundamental' liberty interests at all, regardless of what process is provided, unless the infringement is narrowly customized to serve a compelling state interest."

Applying this technique, one must first analyze freedom from incarceration to determine if it's a fundamental right. If so, federal government policies that want the incarceration of offenders, including medication offenders, must serve compelling interests and be narrowly tailored to accomplish them. This article assumes for the sake of argument that drug problems bring about compelling state interests. It then reviews the interests asserted by the federal government in its pursuit of its drug war guidelines and the outcomes of these policies to determine if the policy of incarcerating medication offenders is narrowly tailored to those asserted passions.

B. THE ESSENTIAL Liberty Interest: Freedom from Incarceration

Federal and state laws subject drug offenders to incarceration. Incarceration is certainly a significant deprivation of liberty that triggers the protections of the Credited Procedure Clause. The Supreme Courtroom has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for instance, the court held:

[I]t is the State's affirmative take action of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other identical restraint of personal liberty--which may be the "deprivation of liberty" triggering the protections of the Thanks Process Clause . . . .

Possibly the earliest explicit acknowledgement by the Supreme Court of freedom from incarceration mainly because a fundamental best under substantive due process arrived in Allgeyer:

The 'liberty' mentioned in [the fourteenth] amendment means, not merely the right of the citizen to get rid the mere physical restraint of his person, as by incarceration, but the term is regarded as to embrace the proper of the citizen to be free in the enjoyment of all his faculties; to become free to use them in all lawful methods; to live and function where he will; to receive his DUI lawyers livelihood by any lawful contacting; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, required, and necessary to his undertaking to an effective conclusion the purposes previously listed.

An 1891 law review content noted that Blackstone described "freedom from restraint of the person" as "perhaps the most important of most civil legal rights," and that Lord Coke felt "the liberty of a man's person is even http://query.nytimes.com/search/sitesearch/?action=click&conten... more precious to him than the rest that's mentioned [in the Magna Charta]." Blackstone claims that "the rights of all mankind . . . could be reduced to three principal or main articles; the right of personal security, the proper of personal liberty, and the proper of private property." Indeed, the original Latin in the Magna Charta's "law of the land" clause uses the word "imprisonetur."

No court has invalidated a criminal statute through the use of substantive due procedure analysis to the essential correct of freedom from incarceration. Simultaneously, no court offers ruled to the contrary. The Supreme Courtroom avoided the issue in Reno v. Flores:

The "freedom from physical restraint" invoked by respondents is not at issue in this case. Surely not really in the sense of criminal law firms near me Barkemeyer Law Firm shackles, chains, or barred cells, given the Juvenile Treatment Agreement. Nor actually in the feeling of the right to come and move at will, since, as we have said somewhere else, "juveniles, unlike adults, are always in some type of custody," and where in fact the custody of the mother or father or legal guardian fails, the government may (indeed, we have said must) either workout custody itself or appoint another person to do so.

This analysis wouldn't normally connect with adult drug offenders. The Fourth Circuit also prevented addressing independence from incarceration as a fundamental correct in Hawkins v. Freeman:

Hawkins's rhetorical reference to the right as being "freedom from unjust incarceration," and that of amicus, American Civil Liberties Union of North Carolina, as the "to get rid arbitrary incarceration," are issue-begging generalizations that cannot http://www.bbc.co.uk/search?q=Louisiana arrests serve the inquiry. An adequately precise description can, however, be found in the reality and legal authorities relied upon by Hawkins in support of his state. From these, we deduce that the complete right asserted is definitely that of a prisoner to stay free on erroneously granted parole as long as he did not donate to or find out of the error and offers for an appreciable time remained on good behavior to the idea that his expectations for continued independence from incarceration possess "crystallized."

Hawkins is distinguishable since it handles an inmate whose parole was revoked. In any event, the informal dismissal as an "issue-begging generalization" flies in the face of almost 800 years of common law tradition and over a hundred years of Supreme Courtroom decisions recognizing independence from incarceration as a simple right. Indeed the language of the Supreme Court's Ingraham decision supports the application DWI law firm New Orleans of substantive due procedure proposed in this paper:

While the contours of this historic liberty interest in the context of our federal program of government have not really been defined precisely, they will have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and actually punish an individual except in accordance with due procedure for law.

The Courtroom also stressed this fundamental liberty interest in Foucha v. Louisiana, a case relating to the confinement of a person found not guilty by reason of insanity:

Independence from bodily restraint has always been at the primary of the liberty protected by the Due Process Clause from arbitrary governmental actions. "It really is clear that commitment for any purpose takes its significant deprivation of liberty that will require due process protection." We have always been careful never to "reduce the importance and fundamental nature" of the individual's right to liberty.

As the Foucha Court indicated that "circumstances might imprison convicted criminals for the purposes of deterrence and retribution," the remark was dicta and did not involve any discussion of Barkemeyer Law Firm criminal law firms substantive limits on the police power. In Meachum v. Fano the Courtroom made an identical remark in the context of a case dealing with prison circumstances: "[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the level that the Condition may confine him." Again there was no discussion of substantive limits on the authorities power. Indeed the prior sentence noted: "The Due Procedure Clause by its force forbids the State from convicting anybody of crime and depriving him of his liberty without complying fully with the requirements of the Clause."

Lately in Zadvydas v. Davis, the Court noted:

The Fifth Amendment's Due Procedure Clause forbids the federal government https://en.search.wordpress.com/?src=organic&q=Louisiana arrests to "depriv[e]" any "person ... of ... liberty ... without due process of law." Independence from imprisonment--from government custody, detention, or additional kinds of physical restraint--lies at the heart of the liberty that Clause protects.

Freedom from incarceration isn't simply a fundamental right. It is the perhaps one of the most fundamental of rights.

C. Identifying the State's Interests

Governmental drug policy interests determined in federal government statutes include "demand reduction," "supply reduction," and "reducing drug abuse and the consequences of drug abuse in the usa, by limiting the availability of http://www.qtelldistributorforum.com/457/posts/8-Business-to-Busine... and reducing the demand for illegal drugs."

Federal law sets particular goals for the National Drug Control Strategy. These include:

"Reduction of unlawful drug use to 3 percent of the population";

"Reduction of adolescent unlawful drug use to 3 percent of the adolescent population";

"Reduction of the option of cocaine, heroin, marijuana, and methamphetamine";

"Reduced amount of the respective nationwide typical street purity levels for cocaine, heroin, marijuana, and methamphetamine"; and more.