From the threads: Gavin R Putland replies to John Adams

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 in application. 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.

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.

The 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.

The breach is most egregious when the evidence is planted by officers of the executive branch. In October 2011, a New York detective wasconvictedof planting drugs on an innocent couple. At his trial, another former detective who had been caught planting evidencetestified that such behavior was common and was motivated by arrest quotas. In December 2011, in Haskell, TX, a former police officer pleaded no contestto planting drugs in a car. In April 2012, the State of New Jersey was busy settling lawsuitsafter four Camden police officers were convicted of planting evidence. In February 2014, a former Philadelphia narcotics officer pleaded guiltyto 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 thousandsof crimes while on duty.

Proving that drugs were planted needs a stroke of luck for the victims, or exceptional incompetencefrom 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.

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 merepossession 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 whereall 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 being prosecuted 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 yourpossession, and that you are judged by your own rules (Proverbs 26:27; Matthew 7:2; Galatians 6:7).

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19 Responses to From the threads: Gavin R Putland replies to John Adams

  1. Empire

    Good post Gavin and thanks for taking the time to pen it.

    Drug enforcement isn’t the only area in which the burden is reversed. If it is contrary to the rule of law, how has this been allowed to happen?

    https://www.alrc.gov.au/publications/laws-reverse-legal-burden

  2. lordazrael

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

    Sorry but I couldn’t make it past the first sentence without bursting out laughing. The writer doesn’t kbow what the rule of law is and most definitely doesn’t not understand what unconstitutional means.

    In the words of that famous lawyer Inigo Montoya “that word, I do not think it means what you think it means”

  3. Tel

    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.

    That’s the theory behind my suggestion that you pick some key plant breeds and allow many people to grow small quantities for own use. This just slices out the middle man entirely. It’s relatively easy to police because the plants are growing right there in people’s yards where they can easily be checked.

    Some people of course will share a bit with their neighbours, but quantity will be small and this also keeps the retail price down. Probably there will be a bit of theft, etc. but again small beer, and users can just grow replacement plants.

    Keep it illegal to [A] grow large quantities on a single property, [B] deal and trade it commercially, and [C] store or transport more than small amounts at a time.

    At a business level that should scorch the Earth pretty well.

  4. Jannie

    Forty years ago as a young lefty hippy I had a naïve belief that we were heading into a golden age of freedom, tolerance, peace and rational law based government. The Spartacists, Feminists, Anti Uraniam and International Socialists who I got mixed up with taught me pretty quick that they were authoritarians and the last thing they wanted was freedom. I got a life and made money, they joined the government bureaucracy and started implementing their Nanny Police State, and made money.

    Today I look with shame and horror at the daily restrictions on freedom that my sons have to put up with. It is a police state, hiding behind a sophisticated leftists propaganda machine at every level of society.

    Presumption of innocence? The GreenIslamicLeft hate our tradition of common law, and will have legal regulations that over rule any implied freedoms, and their is an activist judiciary ready to implement it in the name of social harmony or diversity or some such idiocy.

    I want to stick my head under my bed and scream in frustration at this awful mess. I have to hide in my garret and read the classics and ancient and medieval history. Fortunately I have enough money to afford the occassional smoke of weed. My sons cant afford that luxury, so they drink excessively to kill the existential pain of being young males in this grotesque Nanny Police State.

  5. Sydney Boy

    Really? How terrible. I’ll make sure I use your argument next time my car is photographed going through a red-light camera.

  6. RobK

    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.
    I’m not a lawyer but I think Gavin maybe using a somewhat circular argument here if he’s suggesting that such legislation couldn’t be brought into existence. It is my understanding that there are no such constraints on either state or federal constitutions. I’d be interested to hear what a qualified opinion is on this.

  7. sfw

    We have far too many laws where the victim is ‘Statute’ in other words there is no victim except the law itself, further many of these laws don’t need mens rea, Just doing something that has no consequences for anyone else can carry hefty punishments including imprisonment. Until we can get politicians to realise that these laws are unjust things will just get worse. In Victoria you can have your property seized by the state and even destroyed for a crime in which there is no victim and no harm was done. If there was another world to go to, I’d leave but until a new frontier opens I feel doomed.

  8. AP

    If that’s the case then our whole occupational health and safety law system has been unconstitutional for decades.

    I doubt that is the case, or it would have been tested.

  9. Gerry

    Are the athletes being threatened with incarceration or being withdrawn from competition ? Maybe that is a crucial difference ?

  10. Linden

    That’s the trouble with the law these days, it is so full of bullshit, the legal industry just keeps inventing it to keep the money wheel rolling along. Once upon a time there were no written laws! only common law, based on simply what was wrong what was dishonest. Today we have the magnificent result following decades of governments being by nose by these wonderful civil libertarians and socialist feel good do-gooders that many honest decent people and citizens today do not even feel save in their own homes! The gutless judges together with the smart ass lawyers addressing and the fuckwits called our members of parliament could not give a shit, for them it’s all about looking after their own special interests.

  11. Rococo Liberal

    I have been practising law for many years. I hate to inform Gavin of this but in any battle against an ATO, OSR or Customs assessments the taxpayer bears the burden of proving that assessment excessive, and until he does the taxpayer is liable to pay the tax assessed. Not only that, but if you are unlucky enough to be interviewed by the ATO or Customs under oath you have no right against self-recrimination. Legal Professionalprivilege will apply, but the ATO makes it very difficult to claim and will fine you mercilessly if they find you claimed privilege without cause.
    Besides that, there are a plethora of offences with an absolute liability in which you won’t be able to argue innocence at all.
    The whole point is that the rule of law relates to the law being non-arbitrary and being the same for all.
    So reversing the burden of proof whilst bloody evil is not contrary to the rule of law.

  12. Rob MW

    Sorry but I couldn’t make it past the first sentence without bursting out laughing. The writer doesn’t kbow what the rule of law is and most definitely doesn’t not understand what unconstitutional means.

    Sorry also but mate, you are a bit of fuckwit eh ?

    Here I’ll fix it for you to save any more laughter – The reverse onus of proof for (criminal) drug possession is contrary to the rule of law (as held by the Common Law) and therefore unconstitutional in all jurisdictions We all know the difference between criminal law and Liability/Strict Liability law mate and if you can’t read what Gavin implies then the fucking joke is on you, dickhead.

  13. Phil

    Drug laws and their enforcement are a vast problem especially in the US and the police behaviour outlined here are evidence of that. But the rest of this post isn’t right – the burden of proof isn’t on the defendant, it is on the prosecution who in these cases adduced the drugs into evidence. However reversed onus of proof is entrenched all over our legal system, criminal charges, child sex, explosives, bail laws, copyright infringement……….

  14. Rob MW

    reversed onus of proof is entrenched all over our legal system, criminal charges, child sex, explosives, bail laws, copyright infringement……….

    Only in planning & environment courts otherwise, nope, you have the bull by the short & curly’s.

  15. Mayan

    lordazrael: “The writer doesn’t kbow what the rule of law is and most definitely doesn’t not understand what unconstitutional means.”

    The concept of the rule of law does not mean that, merely because a travesty is enacted by the government, that the travesty becomes the rule of law.

    Think back, revisit history. Even genocidal regimes passed laws that made their actions “legal”. That does not mean that they honoured the concept of the rule of law. It is rather a huge concept, more of the nature of a societal/civilisational cornerstone. Indeed, it finds its best expression in the common law tradition, in which the consent of those subject to the law is vital to its legitimacy.

  16. Andrew M.

    These fine platitudes didn’t help Schapelle Corby in an Indonesian court. The 19 drug runners in Customs were not nabbed until a year later. Some justice, but too late for her.

  17. lordazrael

    Feel free to cite which section of the constitution deals with who bears the onus of proof.

    I’ll wait.

  18. Gavin R Putland

    Thanks to Sinc for his interest in this matter.

    lordazrael and RobK @ #2102733:

    My contention is not that the requirements of the rule of law are written into any document called the Constitution. My contention is that the requirements of the rule of law are the minimum requirements of constitutionality, without which the other requirements can be circumvented.

    For example: In general, the applicability of constitutional provisions depends on facts. Hence, if the State or another party, by exploiting a reverse onus of proof, can deem the said facts to be what it wants them to be, it can circumvent the said constitutional provisions. To avoid this reductio ad absurdum, there must be some implied constitutional constraint on the reversal of the onus of proof.

    Phil @ #2102863: Sure, the police have to prove beyond reasonable doubt that the drugs were in your possession. But if they were in your possession because the police put them there, the onus is on YOU to prove that. The “law”, instead of defining knowledge as a component of the offence of possession, which the prosecution would therefore need to prove, has defined lack of knowledge as an “affirmative defence”, which the accused is required to prove.

    Empire @ #2102674 and AP @ #2102771: The question is whether the citizen, in order to avoid a conviction or equivalent, must jump through any hoop that is uncertain, irrational, arbitrary, or impossible (where irrationality is perhaps a species of uncertainty, and arbitrariness definitely is). If so, the offending legislation or regulation should not survive a constitutional challenge.

    Sydney Boy @ #2102732: The question is whether the State, in your example, has a means of deeming the facts to be what it wants them to be, independently of the truth. I don’t know if it does; but if it does, that is contrary to the rule of law.

    Rococo Liberal @ #2102843:

    I suspect that some of the examples you give would breach the requirement of being non-arbitrary, which requirement you seem to acknowledge. I further suspect that other behaviours of these agencies would breach certainty or rationality or require you to do the impossible.

    However, if the reverse onus of proof merely affects the amount of tax payable, it is effective a tax on the absence of proof. As long as the method of proof is clear and feasible, a tax on the absence of proof doesn’t strike me as any more objectionable than most other taxes in the system, especially taxes on employment or production. The need to pay tax is part of the price of the rule of law — whereas the danger of being convicted for breaching requirements that are uncertain, irrational, arbitrary or impossible is the antithesis of the rule of law.

    Gerry @ #2102776: It probably is a crucial difference, in that withdrawal from competition is probably a contractual matter, and most readers of this blog probably don’t expect the State to negotiate their contracts for them. But for what it’s worth, I wouldn’t advise any young person to take up elite sport under current arrangements.

    Tel @ #2102707:

    Two differences between my approach and yours are: (1) my approach openly aims to RAISE retail prices, and (2) my approach does not technically legalize anything. In other words, my approach is openly anti-drugs. While I do not expect hard libertarians (or even left-libertarians) to welcome that aspect, I do expect them to be pleased that my approach would (i) reduce the legal consequences of mere possession of drugs, (ii) remove the risk of drug convictions based on planted evidence, and (iii) be relatively robust against political attacks by defenders of the status quo. While it is legitimate to debate which drugs, if any, the State should be regulating or proscribing, I do not find it necessary to open that can of worms in order to solve the problem that I am trying to solve.

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