Drugs, Addiction, and the Law

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ISBN: 9780890892275 | 089089227X
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Copyright: 2/9/2004

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The use and abuse of psychotropic (mind-altering) drugs is an integral part of the human experience. Society has long viewed substance abuse through many eyes: criminal activity, moral failing, illness and disability, or simply the exercise of individual liberty. Nonetheless, whether the drugs involved are "legal" or "illicit," substance abuse is a major public health hazard. Author Peter Cohen offers a thorough and thoughtful discussion of the major legal, ethical, and policy considerations that society faces as it deals with substance abuse and dependence (addiction). Several major areas will be addressed: (1) the differences and similarities between "legal" and "scientific" reasoning; (2) the science of drug dependence; (3) balancing the rights inherent in maintaining individual liberty and autonomy with the needs of society (an integral requirement of public health as a medical and legal discipline); (4) the role of criminalization in attempting to control what ma

Table of Cases

Table of Authorities

xix

Chapter 1 The Contrast between "Legal" and "Scientific" Reasoning

(10)

Neither Science nor Law Is a Monolithic Discipline-Their Differences Do Not Always Permit a "Bright Line" Analysis

(9)

Methodologies Contrasted

(2)

Degree of Certainty Required for "Proof"

(1)

Role of Precedence

(2)

Professional Ethos (Law)

(1)

Professional Ethos (Science)

(2)

Predictability and Indeterminacy

(2)

Chapter 2 Public Health, the Law, and Society

(10)

The Scope and Inherent Problems of Public Health

(2)

Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Good Science Can Yield Good Public Policy While Not Precluding Debate

(1)

Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Tragic Public Policy Results when Science Is Ignored and Replaced by Prejudice

(2)

Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Epidemiology, Statistics, and Profiling

(1)

Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Can the "Least Worst Solution" Be the "Best?"

(1)

Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Can Regulations Be "Narrowly Crafted" to Provide for Both Individual Freedom and the Societal Good?

(1)

Factors Involved in Balancing Benefits and Burdens Are Not Absolute but Comprise a Spectrum

(2)

Chapter 3 Acute and Chronic Toxicity of Some Abusable Drugs

(14)

Alcohol

(1)

The Opioids (Heroin, Morphine, and Codeine are Examples)

(2)

Cocaine and Amphetamines

(1)

Marijuana

(5)

Marijuana and Cognition

(1)

Marijuana and Mental Illness

(1)

Is Marijuana a "Gateway" Drug?

(2)

"Ecstasy" (Methylenedioxymethamphetamine or MDMA)

(1)

Potent, Pathological, and Permitted

(2)

A Prologue

(2)

Chapter 4 The History of Attitudes towards Illegal Drugs

(10)

"Herbal Remedies" of Yesteryear

(1)

An Outline of Our Early History of Dancing with Drugs

(3)

The Coca-Cola® Story Is Illustrative of the Connection between Racism and Drug Policy

(2)

Free Will and Biology: Can There Be Mens Rea Absent the Mens?

(2)

Chapter 5 The Epidemiology of Drug Use

(8)

Useful Definitions

(1)

Some Techniques Used to Gather Data Relating to Drug Use

(1)

General Problems Associated with Surveys-Self-Reports or Objective Data

(1)

Unjustified Conclusions

(1)

The Data

(2)

National Household Survey on Drug Abuse

(1)

Drug Use Forecasting (begun in 1987 by National Institute of Justice)

(1)

DAWN (Drug Abuse Warning Network)

(1)

National Institute on Drug Abuse (NIDA)-Sponsored Self-Reporting Survey

(1)

National Comorbidity Survey (NIDA)

(1)

What Is the Epidemiology of Alcohol Abuse and Dependence (Alcoholism)? 12

(1)

A Perspective: How Does the Incidence of Death Related to Illegal Drug Use Compare with Other Major Causes?

(2)

Chapter 6 The Science of Drug Dependence (Addiction)

(10)

How Is Drug Dependence (Addiction) Defined in the Medical Literature?

(1)

Science-Not Ideology

(3)

Understanding Drug Addiction: Insights from the Research

(1)

Alan I. Leshner, Ph.D.

(1)

A New Paradigm

(1)

The Mind and the Brain

(1)

Basic Research

(1)

Conclusions and the Future

(1)

Implications for Policy

(1)

How Should Society and the Law Deal with "Fault"?

(1)

Causation and Disease-Is It Appropriate to Assign "Fault"?

(3)

Chapter 7 The Conflict between Individual Autonomy and Responsibility to Society

(12)

Mill (the Person) v. Mill (the Philosopher)

(1)

Alternative Paradigms

(2)

When Individual Actions Do Not Impact Society, How Might the Law Behave?

(7)

Bowers v. Hardwick

(1)

478 U.S. 186 (1986)

(2)

Lawrence v. Texas, 123 S. Ct. 2472 (2001)

(5)

Chapter 8 Illegal Drugs-The Doctor's Dilemma

(36)

The Harrison Narcotic Act-History and Background

(1)

Early History of Federal Drug Regulation-Evolution of the Food and Drug Act

(2)

International Affairs and the United States

(2)

The Shanghai Conference and Foster Bill

(3)

The Hague Opium Conferences

(1)

Evolution of the Harrison Narcotic Act

(1)

Final Passage of the Harrison Act

(1)

The Harrison Narcotic Act-Potential Problems in Interpretation

(2)

What is the "Legitimate Practice of Medicine"-Who Decides?

(1)

Statutory Interpretation and the Harrison Act

(4)

The Courts v. "Somebody Who Was There"

(1)

The "Poison Pill"

(1)

If Only Congress Had the Courage

(1)

Did the Harrison Act Deal with Treaties, Taxes, or Taboos?

(2)

The Harrison Narcotic Act-Early Cases

(12)

United States v. Jim Fuey Moi

(1)

241 U.S. 394 (1916)

(3)

United States v. Doremus

(1)

249 U.S. 86 (1919)

(2)

Webb et al. v. United States

100

(1)

249 U.S. 96 (1919)

100

(1)

Whipple v. Martinson

101

(1)

256 U.S. 41 (1921)

101

(4)

United States v. Behrman

105

(1)

258 U.S. 280 (1922)

105

(2)

The Harrison Narcotic Act-Are There Limits to Federal Control of Medical Practice?

107

(6)

Linder v. United States

108

(1)

268 U.S. 5 (1925)

108

(5)

Chapter 9 Compulsory Drug Testing

113

(34)

Why Is Drug Testing Done?

115

(1)

What Are the Basic Scientific Principles of Drug Testing?

115

(1)

Where Are Samples Obtained?

116

(1)

What Is the Significance of a Positive Test?

116

(2)

What Is the Significance of a Negative Test?

118

(1)

Are There Ways of Avoiding Detection?

118

(1)

How May Subterfuge Be Detected?

118

(1)

Is Drug Testing Cost Effective?

119

(1)

What Is Meant by "Accuracy" of Drug Tests and How Is This Expressed?

119

(1)

Warrant, Reasonableness, and the Fourth Amendment

120

(2)

When Does a Warrantless (per se Unreasonable) Search Become Reasonable?

121

(1)

A Spectrum of Cases

122

(3)

Schmerber v. California

123

(1)

384 U.S. 757 (1966)

123

(2)

Delaware v. Prouse

125

(1)

440 U.S. 648 (1979)

125

(1)

No You Can't!

125

(1)

Yes You Can!

126

(2)

Michigan v. Sitz

126

(1)

496 U.S. 444 (1990)

126

(1)

Indianapolis v. Edmond

127

(1)

120 S. Ct. 1156 (2000)

127

(1)

You Can Look but You Cannot Touch!

128

(1)

Bond v. United States

128

(1)

529 U.S. 334 (2000)

128

(1)

It's Too Darn Hot, but You Don't Have to Leave the Garden (Yet)!

129

(17)

Kyllo v. United States

129

(1)

533 U.S. 27 (2001)

129

(1)

Skinner, Secretary of Transportation, et al. v. Railway Labor Executives' Association et al.

130

(1)

489 U.S. 602 (1989)

130

(4)

National Treasury Employees Union et al. v. Von Raab, Commissioner, United States Customs Service et al

134

(1)

489 U.S. 656 (1989)

134

(3)

Vernonia School District 47J v. Wayne Acton, et ux.

137

(1)

515 U.S. 646 (1995)

137

(4)

Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Lindsay Earls et al

141

(1)

122 S. Ct. 2559 (2002)

141

(2)

Walker L. Chandler, et al., v. Zell D. Miller, et al

143

(1)

520 U.S. 305 (1997)

143

(3)

A Few Questions Regarding Chandler in Light of the Preceding Cases

146

(1)

Chapter 10 "Crack Babies" and the Constitution-Testing Pregnant Women for Illegal Drugs

147

(40)

Ambivalent Societal Attitudes towards Women and Pregnancy

149

(4)

In re A.C.

149

(1)

537 A.2d 1235 (D.C. Ct. Appeals 1990)

149

(1)

DeShaney v. Winnebago

150

(1)

109 S. Ct. 998 (1989)

150

(1)

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al v. Johnson Controls, Inc

151

(1)

499 U.S. 187 (1991).

151

(2)

What Can Science Tell Us about Illegal Drugs, Particularly Cocaine, and the Fetus or Newborn?

153

(5)

The Problem Presented-Does Cocaine Affect the Fetus?

154

(1)

Cocaine Does Not Have Significant Effects-However, Other Drugs May be Harmful

155

(1)

Cocaine Has Subtle, but Definite, Effects

156

(2)

Rights and Obligations-Cocaine, Pregnancy and Drug-Testing

158

(20)

The Fetus As a "Person"; Role of Privacy

158

(11)

Roe v. Wade

158

(1)

410 U.S. 113 (1973)

158

(3)

Jennifer Clarise Johnson v. State of Florida

161

(1)

578 So. 2d 419 (Fla. App. 1991)

161

(2)

Jennifer Clarise Johnson v. State of Florida

163

(1)

602 So. 2d 1288 (1992)

163

(3)

Cornelia Whitner v. State of South Carolina

166

(1)

328 S.C. 1 (1996)50

166

(3)

Sequellae of Whitner

169

(3)

Ferguson v. City of Charleston

170

(1)

186 E3d 469; (U.S. App., 1999)

170

(2)

The Trial Court's Findings and Its Appeal-Special Needs Applied and Consent Was Moot

172

(9)

Ferguson v. City of Charleston

173

(1)

532 U.S. 67; 121 S. Ct. 1281 (2001)

173

(5)

Ferguson-Before and After

178

(1)

The End is Not in Sight

179

(1)

Questions and Final Thoughts

180

(1)

Use of Illegal Drugs by Pregnant Women in the Context of Public Health

181

(6)

Chapter 11 Disease and Behavior under the Law

187

(18)

Robinson v. California

190

(1)

370 U.S. 660 (1962)

190

(6)

You Can Be but You Can't Do!

196

(9)

Powell v. Texas

196

(1)

392 U.S. 514 (1968)

196

(9)

Chapter 12 Crack, Powder, and Justice-Illegal Drugs and Sentencing

205

(20)

Criteria for Sentencing-Keep in Mind the Several Goals of Criminal Sanctions

205

(1)

Justice in Sentencing-The Debate

206

(1)

History of Mandatory Minimums

207

(4)

Cocaine is Cocaine-The Science of Powder and Crack

211

(1)

The Significance and Process of Scheduling

212

(10)

Antecedents to United States v. Walls

213

(1)

841 F. Supp. 24 (1994)

213

(3)

United States v. Walls

216

(1)

841 F. Supp. 24 (1994)

216

(5)

United States v. Walls

221

(1)

315 U.S. App. D.C. 111 (1995), cert. denied

221

(1)

Judicial Discretion May Be Limited by the Trier of Fact (Sometimes)

222

(3)

Chapter 13 Civil Commitment and Compelled Therapy

225

(24)

Lane v. Candura

226

(1)

376 N.E.2d 1232 (Mass. App. Ct. 1978)

226

(1)

Lake v. Cameron, 364 E2d 657

227

(1)

124 U.S. App. D.C. 264 (1966), cert. denied

227

(3)

Beyond the Criminal Justice System-Past Crimes Have Been Committed

230

(2)

Beyond the Criminal Justice System-Future Crimes or Harm to Self Might Occur

232

(7)

Jacobson v. Massachusetts

233

(1)

197 U.S. 11 (1905)

233

(6)

Mandated Treatment within the Criminal Justice System

239

(4)

Drug Dependence Is a Disease-But Is It "Infectious?"

243

(1)

Conclusions and Final Thoughts

244

(5)

Chapter 14 Disability Law and Drug Dependence-Society's Ambivalence

249

(32)

The Americans with Disabilities Act

249

(1)

A Personal History of the ADA1

250

(2)

A Legislative History of the ADA2

252

(1)

Principles of the ADA

252

(3)

How Does the ADA Deal with Substance Abuse? 42 U.S.C. § 12114-Illegal Use of Drugs and Alcohol

255

(1)

Alcohol and Illicit Drugs Compared

256

(1)

The ADA and § 504 -Tensions between Individual and Class Consideration

257

(6)

Science-Not Ideology

258

(7)

School Board of Nassau County, Fia. v. Arline

258

(1)

480 U.S. 273 (1987)

258

(2)

Arline v. School Board of Nassau County

260

(1)

692 F. Supp. 1286 (M.D. Fla. 1988)

260

(1)

Traynor v. Turnage

260

(1)

485 U.S. 535 (1988)

260

(3)

Changes in Social Security Law Alter Disability Benefits to Drug Dependent Persons

263

(2)

Drug or Alcohol Dependence Is Unprotected When Manifested in the Workplace

265

(3)

Mararri v. WCI Steel, Inc.

265

(1)

130 F.3d 1180 (6th Cir. 1997)

265

(3)

Disability Law and Admission to the Bar

268

(2)

Final Question: Has The Judiciary Recently Imposed Profound Changes on the ADA?

270

(5)

The ADA and Mitigation: What Happens to Protection Following "Cure?"

270

(4)

Sutton v. United Air Lines

271

(1)

527 U.S. 471 (1999)

271

(3)

Murphy v. United Parcel Service, Inc.

274

(1)

527 U.S. 516 (1999)

274

(1)

E.C.'s Cocaine Dependence Is in Remission-Does Mitigation Remove ADA Protection?

274

(1)

What if a State Violates the ADA?

275

(2)

Board of Trustees of the University of Alabama v. Garrett

276

(1)

531 U.S. 356 (2001)

276

(1)

One Last Chance for E.C.

277

(1)

Does the ADA Apply to the Federal Government?

278

(3)

Chapter 15 Pot, Peyote, and Politics

281

(26)

How an "Illegal" Drug Became "Legal" through Religion

282

(1)

How Has the First Amendment Dealt with Religious Use of Illicit Drugs?

283

(3)

The Court Speaks-And So Do the People

286

(1)

The Limits of "Exemptions"

287

(7)

Laetrile Is Neither a Controlled Substance nor Approved

287

(3)

United States v. Rutherford

287

(1)

442 U.S. 544 (1979)

287

(3)

Research, "Emergency," and "Compassionate" Use Prior to (or in the absence of) FDA Approval

290

(1)

The Politics of Marijuana

290

(3)

The Government Spoke and the People Listened-And Acted

293

(1)

Medical Marijuana and the Courts

294

(6)

Medical Marijuana and the Doctrine of "Necessity"

294

(2)

The Appeal-Medical Necessity Upheld

296

(1)

United States v. Oakland Cannabis Buyers' Cooperative

296

(1)

190 F.3d 1109 (9th Cir., 1999)

296

(1)

The Supreme Court's Holding-Medical Necessity Struck Down (at Least for the Time Being)

297

(2)

United States v. Oakland Cannabis Buyers' Cooperative

297

(1)

121 S. Ct. 1711 (2001)

297

(2)

It's Not Over Till It's Over

299

(1)

Doctors May Not Prescribe Smoked Marijuana-But May They Talk About It?

300

(3)

Pearson v. McCaffrey

300

(1)

139 F. Supp. 2d 113 (D.D.C. 2001)

300

(2)

Conant v. Walters

302

(1)

309 F.3d 629 (9th Cir., 2002)

302

(1)

When the "Will of the People" Is Not the "Will of the Congress

303

(2)

Turner v. District of Columbia Board of Elections and Ethics

303

(1)

77 F. Supp. 2d 25; 1999 U.S. Dist. LEXIS 16595 (1999)

303

(2)

Final Thoughts

305

(2)

Some Arguments For and Against Changing Policy

305

(2)

Chapter 16 Treatment of Drug Dependence-A Legal and Public Health Perspective

307

(30)

Is There a Need for Treatment?

308

(3)

Evaluating Therapy Is Not an Exact Science

308

(1)

Treatment Is Effective

309

(2)

Treatment Works-But Raises Significant Legal and Policy Issues

311

(24)

Alcoholics Anonymous

311

(3)

Griffin v. Coughlin

312

(1)

88 N.Y. 2d 674; 673 N.E.2d 98 (NY Appeals, 1996), cert. denied

312

(1)

Kerr v. Farrey

313

(1)

95 E3d 472 (7th Gr. 1996)

313

(1)

Warner v. Orange County Dept. of Probation

314

(1)

173 F.3d 120 (2nd Gr. 1999), cert. denied

314

(1)

Alcoholics Anonymous, the First Amendment, and the "Law of Unintended Consequences"

314

(1)

Maybe He Gets Out

314

(2)

Cox v. Miller

314

(1)

154 E Supp. 2d 787 (S.D.N.Y. 2001)

314

(2)

No, He Stays In!

316

(1)

Cox v. Miller

316

(1)

296 F.3d 89 (2002), cert. denied

316

(1)

Opioid Agonist (Methadone) Therapy

317

(1)

The Science of Opioid Agonist Therapy

318

(1)

The History of Opioid Agonist Therapy

319

(2)

Regulation of Methadone Maintenance (Agonist) Therapy

321

(1)

Summary of Federal Methadone Regulations

322

(1)

Opioid Agonist Therapy-Politics and Policy

323

(5)

Drug Courts

328

(1)

The Physician Health Committee-A "Drug Court" within the Private Sector

329

(2)

Access to Treatment-For the Mentally Ill, for Addicts, for Everyone

331

(4)

Drugs, Addiction, and the Law: Policy, Politics, and Public Health-The Future

335

(2)

Notes and References

337

(34)

Index

371

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Drugs, Addiction, and the Law

Summary

Author Biography

Table of Contents

Supplemental Materials