* B.A., University of Southern California, 1995; J.D., The Catholic University of America, Columbus School of Law, 1999. Trial Attorney, District of Columbia Office of Corporation Counsel, Child Abuse and Neglect Section. The views and opinions expressed in this Article in no way reflect the views and opinions of the Government of the District of Columbia. The author would like to take this opportunity to dedicate this Article to Margie Harrell, Executive Director, Diboll, Texas Public Housing Authority. Mrs. Harrell’s technical assistance was greatly appreciated and her tireless, selfless, and boundless efforts on behalf of her tenants are an exemplary model to be followed throughout the United States. Those efforts reflect proven leadership and are the kind necessary to regain control of the public housing community.
1 Reginald Roberts, Tenants, Housing Groups Back High Court’s No-Drug Ruling, Star-Ledger (Newark, N.J.), Mar. 27, 2002, News at 012, at 2002 WL 17060541.
2 Michael Grossman et al., Illegal Drug Use and Public Policy, 21 Health Aff. 134,  2 (2002), at 2002 WL 12361204.
3 Stephen Dawson, Free_Enterprise.com, Inst. Pub. Aff. Rev., Mar. 2002, at 24, 25, at http://www.ipa.org.au/pubs/reviewdocs/54-1/Review54-1.pdf.
4 See Treat Addiction, Salt Lake Trib. Feb. 18, 2002, at A10, available at 2002 WL 4251634. Two-thirds of this amount, $224 million, would be earmarked for treatment. “This represents a sea change from the tired emphasis on law enforcement, imprisonment and interdiction that has done nothing to stem the demand—and flow—of illicit drugs into this country.” Id.
5 Miguel Navrot, National Guard to See Cuts, Albuquerque J., Jan. 12, 2002, at E3, at 2002 WL 4561654.
6 See We’re Wasting Money in the War on Drugs, Herald (Rock Hill, S.C.), Feb. 8, 2002, at 6A, at 2002 WL 7599808.
7 Marc Mauer, The Social Cost of America’s Race to Incarcerate, Nat’l F., Jan. 1, 2002, at 24, at 2002 WL 17948815.
8 War on Drugs a Crime, Denv. Post, Aug. 25, 2001, at B09, at 2001 WL 6760607.
9 Cheryl L. Cooke, Understanding Incarcerated Populations, 75 AORN (Association of Perioperative Registered Nurses) J. 568, 570 (2002).
10 See Daniel M. Kimmel, ‘Traffic’ Travels to Drug World: Gripping Flick One of Year’s Best, Telegram & Gazette (Worcester, Mass.), Jan. 5, 2001, at C3. The movie explores the “war on drugs,” by recounting three characters’ unique, but nevertheless related, stories. Id.
11 See generally The Wire (HBO cabletelevision series, 2002), at http://www.hbo.com/ thewire/ (last visited Sept. 30, 2002).
12 Vanessa O’Connell, White House Nets Late Deal to Buy Super Bowl Ads, Wall St. J., Jan. 31, 2002, at B1.
13 Id. The network matched commercial time purchased by the government with time slots that, while not appearing during the Super Bowl, were nevertheless of equivalent value. Thus, the tax-payer funded agency “enjoy[ed]some of Madison Avenue’s most expensive advertising time for half price.” Id.
14 Diana Washington Valdes, U.S. Targets Top Criminals, Drug Czar Says, El Paso Times, June 27, 2002, at A01, at 2002 WL 20105562.
15 Id.; see also Ray Delgado, Terrorism Link in Bush Ads Whips Up Backlash: Group Parodies Spots for ‘Appalling’ Campaign, S.F. Chron., Feb. 27, 2002, at A1 (questioning parody of anti-drug ads).
16 Anti-Drug Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (1986) (codified as amended in scattered sections of 3 U.S.C., 5 U.S.C., 7 U.S.C., 8 U.S.C., 10 U.S.C., 12 U.S.C., 14 U.S.C., 15 U.S.C., 16 U.S.C., 18 U.S.C., 19 U.S.C., 20 U.S.C., 21 U.S.C., 22 U.S.C., 23 U.S.C., 25 U.S.C., 28 U.S.C., 29 U.S.C., 31 U.S.C., 38 U.S.C., 42 U.S.C., 46 U.S.C., 47 U.S.C., 48 U.S.C., 49 U.S.C.).
17 Jason A. Gillmer, United States v. Clary: Equal Protection and the Crack Statute, 45 Am. U.L. Rev. 497, 500 (1995).
18 William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev. 1233, 1233–34 (1996); see 21 U.S.C.  841(b)(1)(A)(ii)–(iii) (2000); Gillmer, supra note 17, at 501. The sentencing provisions in the crack statute mandate a ten-year minimum sentence for individuals convicted of possessing and distributing fifty grams of crack. A defendant convicted of possessing and distributing five thousand grams of powder cocaine receives the same sentence. Thus, both provisions punish crimes involving cocaine, but the penalty for a crack offense is one hundred times harsher than the penalty for an offense involving powder cocaine. Id.
19 Pub. L. No. 99-570, 100 Stat. 3207-2, tit. I (1986) (codified as amended in scattered sections of 18 U.S.C., 21 U.S.C., and 28 U.S.C. (1988)).
20 See id.
21 Anti-Drug Abuse Act of 1988, Pub L. No. 100-690, 102 Stat. 4181 (1988) (codified as amended in scattered sections of 5 U.S.C., 8 U.S.C., 10 U.S.C., 12 U.S.C., 14 U.S.C., 15 U.S.C., 16 U.S.C., 18 U.S.C., 19 U.S.C., 21 U.S.C., 23 U.S.C., 25 U.S.C., 26 U.S.C., 27 U.S.C., 28 U.S.C., 29 U.S.C., 31 U.S.C., 38 U.S.C., 39 U.S.C., 40 U.S.C., 41 U.S.C., 42 U.S.C., 46 U.S.C., 48 U.S.C., 49 U.S.C., and 50 U.S.C.).
22 See 42 U.S.C.A.  1437d(l)(6) (West Supp. 2001), which provides that each “public housing agency shall utilize leases . . . providing that . . . any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy . . . .” Id.
23 See generally Christopher R. Williams, PHA Explains Law to Curb Drugs and Criminal Activity, Peoria J. Star, Aug. 16. 2002, at B02.
24 See generally 122 S. Ct. 1230 (2002).
25 See id. at 1236.
26 Pub L. No. 100-690, 102 Stat. 4181 (1988) (codified as amended in scattered sections of 5 U.S.C., 8 U.S.C., 10 U.S.C., 12 U.S.C., 14 U.S.C., 15 U.S.C., 16 U.S.C., 18 U.S.C., 19 U.S.C., 21 U.S.C., 23 U.S.C., 25 U.S.C., 26 U.S.C., 27 U.S.C., 28 U.S.C., 29 U.S.C., 31 U.S.C., 38 U.S.C., 39 U.S.C., 40 U.S.C., 41 U.S.C., 42 U.S.C., 46 U.S.C., 48 U.S.C., 49 U.S.C., and 50 U.S.C.).
27  1002(a), 1002(b)(1), 1003(a)(1). “There is established in the Executive Office of the President the ‘Office of National Drug Control Policy.’”  1002(a). “There shall be at the head of the Office of National Drug Control Policy a Director of National Drug Control Policy.”  1002(b)(1). “The Director, the Deputy Director for Demand Reduction, the Deputy Director for Supply Reduction, and the Associate Director for National Drug Control Policy shall each be appointed by the President, by and with the advice and consent of the Senate.” Id.
28  1003(a)(3)(f). “The Director of National Drug Control Policy may, in his role as principal adviser to the National Security Council on national drug control policy, and subject to the direction of the President, attend and participate in meetings of the National Security Council.” Id.
29  1005(c)(1). “The Director, upon consultation with the Attorney General, heads of National Drug Control Program agencies, and the Governors of the several States, may designate any specified area of the United States as a high intensity drug trafficking area.” Id. This provision also gave the Director broad powers to direct the temporary reassignment of federal personnel, provide federal funding, and determine the effect the “high risk” area was having upon the drug policy of the rest of the country.  1005(c)(1)–(2).
30 See  1004(a)(2)(A)–(B).
The authorities conferred on the Office of National Drug Control Policy and its Director by this Act shall be exercised in a manner consistent with provisions of the National Security Act of 1947. The Director of Central Intelligence shall prescribe such regulations as may be necessary to protect information provided pursuant to this Act regarding intelligence sources and methods. . . . The Director of Central Intelligence shall, to the fullest extent possible in accordance with subparagraph (A), render full assistance and support to the Office of National Drug Control Policy and its Director.
31  5103.
The Secretary of Housing and Urban Development shall submit to the Congress a report on the impact of the implementation of the public housing tenancy and administrative grievance procedure regulations issued under section 6(k) of the United States Housing Act of 1937 (42 U.S.C. 1437d(k)) on the ability of public housing agencies to evict or take other appropriate action against tenants engaging in criminal activity, especially with respect to the manufacture, sale, distribution, use, or possession of controlled substances (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). The report shall be submitted not later than 12 months after the date of the enactment of this Act.
32 Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as amended in scattered sections of 5 U.S.C., 18 U.S.C., 28 U.S.C., 42 U.S.C., and 47 U.S.C.).
33 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,  5105, 102 Stat. 4181, 4301 (1988) (codified at 21 U.S.C.  881(a)(7)). In relevant part, the provision states that the block grant program is expanded to address “the problems of drug trafficking and the illegal manufacture of controlled substances in public housing.” Id.
34 Pub. L. No. 91-513, 84 Stat. 1276 (1970) (codified as amended in scattered sections of 16 U.S.C., 18 U.S.C., 19 U.S.C., 20 U.S.C., 21 U.S.C., 26 U.S.C., 28 U.S.C., 31 U.S.C., 42 U.S.C., and 49 U.S.C.).
35 See  5104 (codified at 42 U.S.C. 3751). “Section 511(a)(7) of the Controlled Substances Act (21 U.S.C.  881(a)(7)) is amended by inserting ‘(including any leasehold interest)’ after ‘right, title, and interest.’” Id.
36  5124.
A public housing agency may use a grant under this chapter for—(1) the employment of security personnel in public housing projects; (2) reimbursement of local law enforcement agencies for additional security and protective services for public housing projects; (3) physical improvements in public housing projects which are specifically designed to enhance security;(4) the employment of 1 or more individuals—(A) to investigate drug-related crime on or about the real property comprising any public housing project; and (B) to provide evidence relating to any such crime in any administrative or judicial proceeding; (5) the provision of training, communications equipment, and other related equipment for use by voluntary public housing tenant patrols acting in cooperation with local law enforcement officials; (6) innovative programs designed to reduce use of drugs in and around public housing projects; and (7) providing funding to nonprofit public housing resident management corporation and tenant councils to develop security and drug abuse prevention programs involving site residents.
37 See generally  5121–5129.
38  5122. The Congressional findings were that:
(1) the Federal Government has a duty to provide public housing that is decent, safe, and free from illegal drugs; (2) public housing projects in many areas suffer from rampant drug-related crime; (3) drug dealers are increasingly imposing a reign of terror on public housing tenants; (4) the increase in drug-related crime not only leads to murders, muggings, and other forms of violence against tenants, but also to a deterioration of the physical environment that requires substantial government expenditures; (5) and local law enforcement authorities often lack the resources to deal with the drug problem in public housing, particularly in light of the recent reductions in Federal aid to cities.
39 See 42 U.S.C.A  1437d(l)(6) (West Supp. 2001).
40 See id.
41 See generally 397 U.S. 254 (1970).
42 Id. at 255–56. Each resident was receiving financial assistance pursuant to Aid to Families with Dependent Children, a federal program, or New York State’s general Home Relief program. Id.
43 Id. at 256.
44 Id. at 257.
45 Id. at 267.
46 Kelly v. Wyman, 294 F. Supp. 893, 895 (S.D.N.Y. 1968).
47 Id. at 895.
48 Goldberg, 397 U.S. at 254.
49 Id. at 260.
50 Id. at 271.
51 See id. at 261–62.
52 See id. at 263–64.
53 Goldberg, 397 U.S. at 263–64. (citations omitted).
54 See generally Rucker v. Davis, No. C98-00781, 1998 U.S. Dist. LEXIS 9345, at *1 (N.D. Cal. June 19, 1998), vacated by 203 F.3d 627 (9th Cir. 2000), reh’g en banc, granted, 222 F.3d 614 (9th Cir. 2000), reh’g en banc, 237 F.3d 1113 (9th Cir. 2001), cert. granted sub nom. Dep’t of Hous. & Urban Dev. v. Rucker, 533 U.S. 976 (2001), rev’d, 122 S. Ct. 1230 (2002).
55 See id.
56 See id. at *5–6.
57 See id.
58 See id.
59 See Rucker, 1998 U.S. Dist. LEXIS 9345 at *5–6.
60 See id. Hill and Lee’s grandsons and Pearlie Rucker’s daughter, however, were listed on Hill, Lee, and Rucker’s leases, respectively. See id.
61 See id. at *1.
62 See id. at *7–8. Respondents argued that HUD had misinterpreted the Act according to the Administrative Procedures Act because 42 U.S.C.  1437d(l)(6) requires lease terms authorizing the eviction of “innocent” tenants. See Rucker, 1998 U.S. Dist. LEXIS 9345 at *7–8.
63 See id. at *39.
64 See 203 F.3d 627, 637-38 (9th Cir. 2000).
65 See Rucker v. Davis, 237 F.3d 1113, 1119 (9th Cir. 2001). See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 468 U.S. 1227 (1984). In Chevron, the Court upheld the Environmental Protection Agency’s interpretation of its enabling statute. See id. In upholding the agency’s interpretation, the Court created a two-part inquiry to be used during judicial review of an administrative agency’s interpretation of the statute it administers. See id. First, the Court inquired “whether Congress has directly spoken to the precise question at issue [and] if the statute is silent or ambiguous [on] the specific issue. . . . [The second question is] whether the agency’s answer is based on a permissible construction of the statute.” Id. at 842-43.
66 See Dep’t of Hous. & Urban Dev. v. Rucker, 533 U.S. 976, 976 (2001).
67 Dep’t of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230, 1236 (2002).
68 See id. at 1233. “42 U.S.C.  1437d(l)(6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity.” Id.
69 See id.
70 See id. at 1235.
The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from “rampant drug- related or violent crime, the seriousness of the offending action, and the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action. It is not ‘absurd’ that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such ‘no-fault’ eviction is a common ‘incident of tenant responsibility under normal landlord-tenant law and practice.’”
Rucker, 122 S. Ct. at 1235.
71 See id. at 1236.
But, in the present cases, such deprivation will occur in the state court where OHA brought the unlawful detainer action against respondents. There is no indication that notice has not been given by OHA in the past, or that it will not be given in the future. Any individual factual disputes about whether the lease provision was actually violated can, of course, be resolved in these proceedings.
72 See id.
73 See id. at 1235.
74 122 S. Ct. at 1235.
75 Id.
76 Drug-Induced Evictions, Boston Globe, Mar. 1, 2002, at A16. The Boston Housing Authority also generally brings eviction proceedings under state law, which allows heads of household to raise mitigating circumstances, such as lack of knowledge of the crime. Id.
77 See 1998 U.S. Dist. LEXIS, 9345 at *6–7.
78 42 U.S.C.A  1437d(l)(6) (West Supp. 2001).
79 Id.
80 See 42 U.S.C.  11901(1) (2003).
81 Zlati Meyer, Fighting for Peaceful Community Life: A Housing Project Turns Itself Around, Phila. Inquirer, May 16, 2002, at BC01, at 2002 WL 19586430.
82 Id.
83 John Drake, Major Drug Ring Put Out of Action: 25 Held in $20 Million Heroin Bust, Wash. Times (D.C.), Aug. 9, 2000, at C1. This group primarily sold drugs in the Langston Dwelling Housing Complex, which is located near 21st Street and Benning Road NE, and is near Spingarn and Phelps high schools, Brown Junior High School, and Young Elementary School. Id.
84 Melita Marie Garza, 19 Arrested in CHA Crime Crackdown, Chi. Trib., Aug. 14, 1999, at 5.
85 Id.
86 See supra notes 75–78 and accompanying text.
87 See Robin Minter Smyers, High Noon in Public Housing: The Showdown Between Due Process Rights and Good Management Practices in the War on Drugs and Crime, 30 Urb. Law. 573, 614 (1998).
88 See Jason Dbuzow, Fear-Free Public Housing?: An Evaluation of HUD’s “One Strike and You’re Out” Housing Policy, 6 Temp. Pol. & Civ. Rts. L. Rev. 55, 72 (Fall 1996–Spring 1997).
89 See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,  1005(c)(1), 102 Stat. 4186 (1988).
90 See generally Cary Aspinwall, Housing Officials Fear a Return of Drugs, Crime; Grant Used for Security, Special Programs Is Ending, Tulsa World, May 7, 2002, Metro, at 11, available at 2002 WL 7117743. This HUD program was meant to be used in combating drugs by providing money for security guards, police patrol, drug abuse prevention, youth intervention, and other programs. See id.
91 See Lisa Weil, Drug-Related Evictions in Public Housing: Congress’ Addiction to a Quick Fix, 9 Yale L. & Pol’y Rev. 161, 186–87 (1991).
92 See id. at 183.
93 See generally 122 S. Ct. 1230 (2002).
94 See Brendan Farrington, Jeb Bush’s Daughter Arrested; Florida Governor’s Child, 24, Accused of Using Fake Rx, Chi. Sun-Times, Jan. 30, 2002, News at 5, available at 2002 WL 6445997. Noelle Bush allegedly posed as a doctor and called in a fraudulent prescription after she suffered a panic attack. Id.
95 See Weil, supra note 91, at 183.
96 See generally The FBI Bows Out, St. Louis Dispatch, Aug. 5, 2002, at B6.
97 Tom Condon, Flash: Drug War No Joke, Hartford Courant, Apr. 4, 2002, at B1.