Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P5 ppsx

others. Ordinarily, all of these items may be sold without a pharmacy license. A physician does not have any special right to own or operate a drugstore. A person should not, however, be denied a license merely because he or she is also a medical doctor. Laws governing pharmacy do not generally interfere with the right of a physician to sell drugs to his or her patients. The physician cannot, however, make it a regular practice to fill prescriptions that other physicians send. CROSS REFERENCES Drugs and Narcotics; Health Care Law; Physicians and Surgeons DRUGS AND NARCOTICS Drugs are articles that are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of d isease in humans or animals, and any articles other than food, water, or oxygen that are intended to affect the mental or body function of humans or animals. Narcotics are any drugs that dull the senses and commonly become addictive after prolonged use. In the scientific community, drugs are defined as substances that can affect a human’s or animal’s biological and neurological states. They may be organic, such as the chemical tetrahydrocannabinol (THC), which occurs naturally in marijuana; or synthetic, such as amphetamines or sedatives, which are manu- factured in laboratories. Drugs can be swal- lowed, inhaled through the nostrils, injected with a needle, applied to the skin, taken as a suppository, or smoked. Scientists categorize drugs according to their effects. Among their categories are analgesics, which kill pain, and psychoactive drugs, which alter the mind or behavior. Some psychoactive substances pro- duce psychological highs or lows according to whether they are stimulants or depressants, respectively. Others, called hallucinogens, pro- duce psychedelic states of consciousness; lyser- gic acid diethylamide (LSD) and mescaline are examples of such drugs. Marijuana is placed in its own category. U.S. law categorizes these substances differ- ently. Commonly, federal and state statutes distinguish drugs from narcotics. Drugs are substances designed for use in and on the body for the diagnosis, cure, treatment, or prevention of disease. These substances are regulated by the FOOD AND DRUG ADMINISTRATION (FDA). Drugs have been defined to include such substances as herb tonics, cold salves, laxatives, weight- reduction aids, vitamins, and even blood. Narcotics are defined by statute as substances that either stimulate or dull an individual’s senses and that ordina rily become habit-form- ing (i.e., addictive) when used over time. The regulation of narcotics falls into two areas. Legal narcotics are regulated by the FDA and are generally available only with a physician’s prescription. The production, possession, and sale of illegal narcotics—commonly called controlled substances—are banned by statute. The U.S. government has spent billions of dollars in a fight to reduce drug use in the United States, citing startling statistics about the number of individuals who use drugs. Accord- ing to statistics compiled by the Centers for Disease Control and Prevention, more than half of the adults in the United States between the ages of 18 and 34 have used illicit drugs during their lifetime. Moreover, 28 percent of children between the ages of 12 and 17 have used illicit drugs. Although much of the attention has focused upon use of such drugs as ma rijuana and cocaine, new “club” or “designer” drugs have beco me popular among some younger individuals. About six million children and young adults over the age of 12 have reported using the designer drug methylene-n-methy- lamphetamine (MDMA), also known as “ecsta- sy,” which has sparked a national debate about improved drug education in grade schools and high schools in the United States. Drug Laws Authority to regulate drug use rests foremost with the federal government, derived from its power to regulate interstate commerce. States are free to legislate so long as their laws remain consistent with federal law. Most states have adopted federal models for their own drug legislation. As of 2009, the law has two main objectives. First, it regulates the manufacture, sale, and use of legal drugs such as aspirin, sleeping pills, and antidepressants. Second, it prohibits and pun- ishes the manufacture, possession, and sale of illegal drugs, ranging from marijuana to heroin, as well as some dangerous legal drugs. The distinction between legal and illegal drugs is a twentieth-century phenomenon. During the nineteenth century, there was very GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 28 DRUGS AND NARCOTICS little governmental control over drugs. The federal government regulated the smallpox vaccine in 1813 (2 Stat. 806) and established some controls through the Imported Drugs Act of 1848 (9 Stat. 237, repealed by Tariff Act o f 1922 [42 Stat. 858, 989]). But addictive sub- stances such as opium and cocaine were legal; in fact, the latter remained a minor ingredient in Coca-Cola soft drinks until 1909. Heroin, discovered in 1888, was prescribed for treating other addictions. California began restricting opium in 1875, but widespread criminalization of the substance did not come for decades. States began a widespread movement to- ward control of legal and illegal drugs at the turn of the twentieth century. The federal government joined this process with the PURE FOOD AND DRUG ACT OF 1906 (34 Stat. 768, 1906, ch. 3915, §§ 1–13, repealed by Federal Food, Drug, and Cosm etics Act of 1938), which primarily sought to protect consumers from “misbranded or poisonous” drugs, medicines, and alcohol. It established federal jurisdiction over the domestic manufacture and sale of drugs and also regulated drug imports. Nevertheless, when Congress passed the Harrison Act of 1914 (Pub. L. No. 223, 38 Stat. 785), which imposed a tax on opium and cocaine, it stopped short of declaring either drug illegal. Most efforts to restrict drug use focused on alcohol. The temperance move- ment’s Prohibition crusade culminated in the passage of the EIGHTEENTH AMENDMENT and the VOLSTEAD ACT of 1920 (41 Stat. 305), which made alcohol illegal. Alcohol remained illegal until the repeal of Prohibition in 1933 with passage of the TWENTY-FIRST AMENDMENT. Despite numerous amendments, flaws in the Pure Food and Drug Act spurred Congress to replace the statute. In 1938 federal law- makers enacted the Federal Food, Drug, and Cosmetics Act (FFDC) (21 U.S.C.A. §§ 301 et seq.), which established the Food and Drug Administration (FDA) as the federal agency charged to enforce the law. The FFDC exerted broad control over the domestic commercial- drug market. Over the next two decades, states and the federal government continued to criminalize nonmedicinal and recreational drugs, and by mid-century, the division between legal and illegal drugs was firmly in place. In 1970 Congress passed the Comprehensive Drug Abuse Prevention and Control Act (21 U.S.C.A. §§ 801 et seq.), which continued as of 2009 to be the primary source of federal law on controlled substances. Over-the-counter and prescription drugs are tightly regulated under the FFDC. This act and the Kefauver-Harris Drug Amendments of 1962 (Pub. L. No. 87-781, 76 Stat. 781) give the FDA a broad mandate. The agency protects consumers from the potential hazards of dangerous drugs, misleading labels, and FRAUD. The FDA sets standards of safety and quality, and its enforcement duties include the research, inspection, and licensing of drugs for manufac- ture and sale. Because the law requires that drugs not be adulterated, the FDA ascertains that they conform to legal standards of strength, quality, and purity. It also classifies the drugs that are to be dispensed only by a physician’s prescription. Finally, new drugs can be placed on the market only after being approved by the FDA. Traditionally a slow process, FDA ap- proval was speeded up significantly for some drugs in the 1980s and 1990s, largely in response to the AIDS epidemic. The FDA does not typically ban nutritional supplements, but in some cases, these supple- ments have caused health problems that led to their removal from the market. For instance, the herbal supplement ephedra became popular in the 1990s for dietary use. However, the drug was also linked to heart attacks and strokes. In 2004 the FDA banned its use, marking the FIRST INSTANCE where the FDA had banned an over- the-counter nutritional supplement. To control the use of dangerous drugs, federal law and most state statutes use a classification system outlined by the Uniform Controlled Substances Act, based on the federal Comprehensive Drug Abuse Prevention and Control Act. This system includes both illegal and dangerous legal drugs. It uses five groups, called schedules, to organize drugs according to their potential for medical use, harm, or abuse, and it imposes a series of controls and penalties for each schedule. Heroin, hallucinogens, and marijuana are placed on schedule I, as they are thought to have a high potential for harm and no medical use. Other types of opiates and cocaine are on schedule II. Most depressants and stimulants are on schedule III. Some mild tranquilizers are on schedule IV. Schedule V is for drugs that are considered medically useful and less dangerous GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DRUGS AND NARCOTICS 29 but that can cause limited physical and psychological dependence, such as cough-syrup mixtures that contain some codeine. Under the law, drugs may be rescheduled as new evidence of their uses or risks becomes apparent, and the attorney general has the authority to add new drugs to the schedules at any time. Penalties are established according to the severity of the crime. Possession of a controlled substance is the simplest crime involving drugs. Possession with intent to sell is more serious. Selling or trafficking incurs the greatest penal- ties. The exact penalty for a particular offense depends on numerous factors, including the type of drug, its amount, and the convicted party’s previous criminal record. Penalties range from small monetary fines to life imprisonment and even greater punishments. Under a general expansion of federal offenses that can invoke CAPITAL PUNISHMENT, the Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, imposes the death penalty for major drug trafficking. Generally, the highest price paid by drug offenders is prison time for trafficking. In 1999, accord ing to statistics from the DEPARTMENT OF JUSTICE, the average sentence for drug offenders engaged in drug trafficking was 77.1 months, compare d to an average of 15.8 months for drug possession. Between the mid-1980s and early 1990s, lawmakers enacted the harshest drug laws in U.S. history. The impetus for these laws came from the so-called war on drugs, a broad federal and state public-policy push initiated under President RONALD REAGAN that received wide- spread public support. Among its many initia- tives was the creation of the cabinet-level office of the national director of drug control policy, known as the drug czar, to coordinate national and international antidrug efforts. The war on drugs also created a patchwork of antidrug laws. These included the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207), which toughened penalties for drug violations involving cocaine, especially its smokable derivative, crack. The law imposed mandatory minimum sentences, even for first- time offenders. For sentencing purpose s, it established a ratio that regards one gram of crack as equivalent to 100 grams of powder cocaine. While greatly increasing the number of drug offenders in prisons, the law has provoked considerable controversy over its effect on minorities. The Anti-Drug Abu se Act of 1988 (Pub. L. No. 100-690, 102 Stat. 4181) further increased federal jurisdiction over drug crime. For the first time, it became a federal crime to possess even a minimal amount of a controlled substance. Penalties were added for crimes that involve minors, pregnant women, and the sale of drugs within 100 feet of public and private schools. States toughened their laws as well. Michigan, for example, imposed life imprison- ment without parole for cocaine trafficking (Mich. Comp. Laws Ann. § 333.7403 [2][a][i]). Under the Violent Crime and Law Enforce- ment Act, Congress exempted certain first-time, non-violent offenders from minimum sentenc- ing. An exempted person must be a first-time offender with a limited criminal history; must not have used violence or possessed a weapon during the offense; could not have organized or supervised activities of others; and must provide truthful information and evidence to the government during the offense. The fight against illegal drugs has extended to housing. The Anti-Drug Abuse Ac t mandates that every local public-housing agency insert a clause in its standard lease document that gives the agency the right to evict tenants if they use or tolerate the use of illegal drugs on or near their premises. The law has been lauded as an effective means of ridding public housing of drug dealers and other criminal activity that comes with it. However, critics have contended that many elderly citizens who live with their children and grandchildren have been unfairly evicted under this zero-tolerance policy. These critics have argued that the eviction of so-called innocent tenants violates the 1988 law, as Congress only meant to penalize those persons who have knowledge of drug use. The U.S. Supreme Court, in Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002), rejected these arguments, ruling that the law clearly gives the housing agency discretion to evict tenants, whether or not they knew about drug use. The case arose when a 63-year-old grandmother in Oakland, California, was evicted when her adult daughter had been caught using crack cocaine three blocks from her mother’s house. Drug Policy and Law Enforcement The enforcement of U.S. drug laws involves the use of substantial federal and state resources to educate, interdict, and prosecute. Estimates of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 30 DRUGS AND NARCOTICS the total annual cost of drug enforcement ranged from $20 billion to $30 billion in the 1990s. The federal government directs drug enforcement policy through the national direc- tor of drug control policy. Policy implementa- tion involves both federal and state agencies, including the Department of Justice (DOJ), the DRUG ENFORCEMENT ADMINISTRATION (DEA), the FEDERAL BUREAU OF INVESTIGATION (FBI), the STATE DEPARTMENT , branches of the ARMED SERVICES and the U.S. Coast Guard, and local police depart- ments. Drug enforcement is primarily a nation- al effort, yet because drugs enter the United States from other countries, it also has interna- tional considerations. The war on drugs can be traced back to the 1960s, when illicit drugs became especially popular again. The accompanying increase in drug use led to comprehensive antidrug legisla- tion under President RICHARD M. NIXON, whose administration introduced the word war as a metaphor for the drive to enforce drug laws. In the 1980s, under President Reagan, the cam- paign took the form it continued to have in the early 2000s. The Reagan administration’s pub- lic-relations campaign (which popularized the saying “Just say no”) was bolstered by stricter state and federal drug laws. Federal spending to enforce drug laws rose from $37 million in 1969 to $1.06 billion in 1983. Over the next decade, it increased to approximately $30 billion, includ- ing the full cost of federal, state, and local law enforcement efforts, along with costs incurred by the judiciary and prison and healthcare systems. In 2009, President BARACK OBAMA set aside about $2.2 billion to the DEA alone in the fight against illegal drugs. Enforcement efforts are shared between federal and state governments. Joint federal- state task forces investigate illegal drug sales for two key reasons. First, states have declared an interest in eradicating the illegal sale and use of controlled substances through the enactment of severe antidrug laws, but they lack the necessary resources. Second, in return for their participa- tion, state law enforcement agencies are eligible for federal funds that are crucial to their operation. Besides helping the agencies to meet administrative expenses, local undercover police officers use these funds to buy drugs so that they can arrest dealers. As a result of these shared operations, prosecutors have broad discretion in pursuing drug offenses. They may charge defendants under federal law, state law, or sometimes both. The U.S. Constitution’s protection against DOUBLE JEOPARDY (i.e., being tried twice for the same CRIMINAL ACTION) does not apply when separate jurisdictions bring charges, and the dual-sovereignty doctrine allows successive federal and state prosecutions. However, many states prohibit prosecution in their courts if the conduct already has been the subject of a federal prosecution. Prosecutors consider several fac- tors when deciding where to bring charges, including the relative severity of state and federal drug laws; the existence of mandatory minimum sentencing guidelines in federal court; and the comparative leniency of federal rules regarding wiretaps and informants. Al- though federal law generally is tougher because of its mandatory minimum sentences, nearly every state has enacted laws requiri ng manda- tory prison time for certain drug offenses. Prosecutors also take into account the kind of drug involved. Under federal sentencing guide- lines, crack cocaine is treated much more harshly than is powder cocaine. Prosecutors also may seek civil fines and civil FORFEITURE of property. The number of individuals charged with drug offenses by the federal government rose from 11,854 to 29,306 between 1984 and 1999. By 2006 this number had reached 35,210. The percentage of crimes prosecuted by the federal government likewise increased. In 1984, 18 percent of referrals by federal prosecutors involved drug offenses. This number increased to 32 percent in 1999, though the number decreased to 26.1 percent by 2006. The majority of federal drug offenses involve marijuana, powder cocaine, crack cocaine, and methamphetamine. In 2006 federal officials made 26,425 arrests for drug offenses. Federal authorities confiscated thousands of ounces of drugs, including 660,969.2 kilograms of marijua- na, 49,823.3 kilograms of cocaine, and 1,540.4 kilograms of methamphetamine. On February 12, 2002, President GEORGE W. BUSH announced the creation of the National Drug Control Strategy. The core principles include: (1) stopping drug use before it starts; (2) healing American drug users; and (3) disrupting the drug market. The goals of the initiative included the reduction of drug use by 10 percent in the first two years, and by 25 percent over the first five years. A national survey conducted in 2009 showed that illicit GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DRUGS AND NARCOTICS 31 drug use had declined by 25 percent, due in large part to the National Drug Control Strategy. Use of such drugs as ecstasy, LSD, and methamphetamine declined by more than 50 percent from the time of the National Drug Control Strategy’s formation. In addition to domestic efforts to police drug sales, international efforts are part of the war on drugs. These efforts include interdiction by federal law enforcement agents at the U.S. border to prevent drugs from ente ring the country. The federal government has also posted DEA agents in other countries, such as Bolivia and Colombia, as part of a broader campaign to prevent the flow of drugs into the United States. Throughout the 1980s and 1990s, the United States applied diplomatic pressure to the governments of Bolivia and Colombia to persuade them to end drug production in their countries. In order to continue receiving U.S. aid and government-backed loa ns, foreign nations have had to cooperate with the antidrug initiatives of Washington. In March 1996, President BILL CLINTON cut off such aid to Colombia for lack of cooperation. The funding in Colombia did not end in 1996, despite a strong opposition to the policies against funding the drug war through South American countries. The United States has invested an estimated $30 billion in the war on drugs in Latin America, yet the influx of drugs into the United States continues. An estimated 80 percent of drugs in the United States originate in South America, many in Colombia. In 2000 President Clinton approved a spending bill that called for $1.3 billion in aid to the Colombian government. Members of Congress expressed concern that financing the Colombian government would spread the ongo- ing civil war in that country, which claimed more than 35,000 lives in the 1990s. Much of the bill was designed to provide Colombia with military equipment, and it also called for training of Colombian soldiers. Colombian leaders prom- ised that the aid would cut drug production in that country by half. Crack Cocaine, Race, and the War on Drugs I n the war on drugs in the United States, race is a critical issue. A 2008 HUMAN RIGHTS WATCH report found that adult black males are nearly 12 times as likely to be imprisoned for drug convictions as adult white men. This racial disparity has drawn the attention of policy makers, politicians, and the courts. Many observers attribute much of it to the severe penalties imposed for offenses involving crack cocaine, which lead to the arrest and conviction of primarily black defendants. Smokable cocaine, or crack, origi- nated in the 1980s in U.S. inner cities. Because crack costs much less than powder cocaine, it quickly became the choice of poor drug users. In response to the resulting increased use of crack, Congress passed the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207 [codified as amended in scattered sections of 21 U.S.C.A. §§ 801–970]). The 1986 law regards one gram of crack as equivalent to one hundred grams of powder cocaine. The U.S. SENTENCING COMMISSION adopted this ratio when it revised the Sentencing Guidelines that same year. In 1988 the Anti-Drug Abuse Act was amended to establish new mandatory minimum sentences. The amendment’s sponsor, Representative E. Clay Shaw Jr. (R-Fla.), said of the tougher sentences: “Crack is an extraordinarily dangerous drug so we must take ex traor- dinary steps to co mbat it.” Under federal law, the offense of selling five grams of crack, for example, is punishable by a mandatory minimum sentence of five years. To receive the same sentence for trafficking in powder cocaine, an offender would have to sell five hundred grams. Thus, small-time crack dealers can receive longer prison t erms than cocaine wholesalers. In addition, mandatory minimum sentences for crack offenses mean that PLEA BARGAINING for a reduced sentence is not available. First- time offenses involving crack or powder cocaine are also differentiated. First-time offenders convicted in powder cocaine cases often receive parole and drug treatment; most first-time offenders in crack cases receive jail sentences. By the early 1990s, the effect of these harsher laws on African Americans was evident. In a survey of 1992 sentencing data, the U.S. Sentencing Commission found that 92.6 percent of offenders sentenced for crack offenses were black, whereas 4.7 percent were white. With regard to cocaine offenses in general, 78 percent of offenders were black, and 6 percent were white. The Bureau of Justice Statistics in the JUSTICE DEPARTMENT concluded in 1993 that blacks are jailed longer than whites GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 32 DRUGS AND NARCOTICS The courts have played a significant role in the war on drugs. Broadly speaking, under the FOURTH AMENDMENT, they have expanded the power of the police to conduct searches and seizures. In a series of decisions during the 1980s and 1990s, the U.S. Supreme Court ruled that police of ficers have the power to conduct war- rantless searches of bus passengers, car interiors, mobile homes, fenced private property and barns, luggage, and trash cans. In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the Court held that no warrant was needed to seize narcotics that are recogniz- able by “plain feel” while an officer is frisking a suspect for conceale d weapons. In contrast, the Court restricted the power of state and federal governments to use civil fines and civil forfeiture of property as penal- ties in drug cases. In a 1989 case that had a substantial bearing on prosecutorial initiative in drug enforcement, the Court held that the government could not recover both a criminal fine and a civil penalty in separate proceedings (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487). In 1993, the Court curtailed civil forfeiture laws by ruling that confiscation of property is subject to the Eighth Amendment’s protections against excessive fines (Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488). Movement to Legalize Marijuana for Medical and Other Purposes For many decades, the federal government has classified marijuana as a controlled substance that cannot be used legally except for scientific research projects. Although state governments continue to make the possession, distributions, and use of marijuana a crime, nine states have legalized the use of the drug for medicinal use. Through the use of ballot initiatives, voters approved these so-called medical marijuana laws in eight of these states, including Califor- nia. Advocates contend that persons who are afflicted with serious illnesses such as AIDS, cancer, and multiple sclerosis are helped by for drug offenses. The bureau explained that “the main reasons that African Americans’ sentences are longer than whites’…was that 83 percent of all federal offenders convicted of trafficking in crack cocaine in guideline cases were black, and the average sentence imposed for crack trafficking was twice as long as for trafficking in powdered cocaine.” Some critics believe that the racial disparities in sentencing are a result of intentional discrimination. They argue that race has long been an issue in drug enforcement laws, from concerns about Chinese laborers and opium at the turn of the twentieth century to fears about blacks and cocaine in the early 1900s that produced headlines such as “Negro Cocaine ‘Fiends’ Are a New Southern Menace.” Other critics take the sugges- tion of conspiracy farther, arguing that the comparatively heavy drug use (as well as violence) in the black community is a result of deliberate attempts by whites to foster black self-destruction. Legal challenges at the state level met with little success. As of 200 9, one state court had struck down enhanced penalties for crack offenses as a violation of EQUAL PROTECTION under the state constitution (State v. Russell, 477 N . W. 2 d 886 [Minn. 1991]). In that case the court said that state law treated black crack offenders and white powder cocaine offenders unfairly, although that result may have b een unintentional. On the federal level, several convicted crack offenders argued that the discrep- ancy between sentences for crack and powder cocaine violates equal protection or due process, but it took many years for the U.S. Supreme Court to come to that same conclusion. In 1996, the Court held that statistics showing that most crack defendants are black do not in themselves support the claim of SELECTIVE PROSECU- TION . Instead, the Court ruled, the burden is on defendants to prove that “similarly situated defendants of other races could have been prosecuted, but were not” (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687). However, the Court changed direc- tion in Kimbrough v. United States (552 U.S. 85,128 S. Ct. 558, 169 L. Ed. 2d 481 [2007]). In this case, the Court consid- ered how far courts could go in deviating from the Sentencing Commission’s crack cocaine guidelines in fashioning a sentence. The Court ruled that appellate courts must assess sentences based on a “reasonableness” standard. A judge may consider the disparity between crack and powder cocaine sanctions in fashioning an appropriate sentence. Shortly before this decision was an- nounced,theU.S.SentencingCommission modified the guidelines, reducing the sentence range for first-time offenders for possessing crack cocaine. The commission estimated that changing the crack guide- lines would reduce the size of the federal prison population by 3,800 in 15 years. The commission also asked Congress to repeal the mandatory prison term for simple possession and increase the amount of crack cocaine required to trigger five-year and ten-year mandatory minimum prison terms. In November 2007, the commission applied the lower penalties retroactively to 19,500 crack cocaine offenders who were sentenced before the change. Al- most 3,800 prisoners were released from federal prisons by early 2008. CROSS REFERENCES Due Process of Law; Equal Protection; Selec- tive Prosecution; Sentencing. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DRUGS AND NARCOTICS 33 smoking marijuana. The federal government contested the constitutionality of these laws, believing that federal drug laws preven t the states from making exceptions. The federal government’s efforts to end the distribution of medical marijuana in California led to a U.S. Supreme Court decision, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001). The Court agreed with the federal government, concluding that the federal Con- trolled Substances Act did not recognize the use of marijuana for medical purposes. The case grew out of a 1996 vote in California. Citizens had brought about an initiative called the Compassionate Use Act of 1996. The law sought to provide seriously ill persons with legal clearance to purchase mari- juana for medicinal use. It permitted patients and their primary caregivers to possess or to cultivate marijuana for medical purposes if approved by a physician. Following the law’s enactment, numerous organizations started medical cannabis dispensaries to distribute marijuana to eligible patients. The Oakland Cannabis Buyers’ Cooperative was one of those organizations. The nonprofit cooperative employed a doctor and registered nurses to screen prospective members through a personal interview and a review of the treating physi- cian’s written statement. If the person met the requirements, the cooperative issued the person an identification card that entitled him or her to purchase marijuana from the organization. The federal government sued the coopera- tive in 1998 and asked the federal district court to issue an injunction banning the cooperative from distributing and manufacturing marijua- na. The court agreed that the cooperative had violated the federal controlled-substance law and issued the injunction. O n appeal, the Ninth CIRCUIT COURT of Appeals reversed the lower court’s decision. It ruled that a “medical necessity exemption” existed and that the district court could apply its equitable discretion and permit the cooperative to assert such an exemption. Subsequently, the U.S. Supreme Court reversed the Ni nth Circuit in an 8-0 decision. Justice CLARENCE THOMAS, writing for the Court, looked to the provisions of the Controlled Substances Act to determine whether the courts could make medical necessity a defense. Thomas noted that marijuana is classified as a schedule I substance. The only express excep- tion to the unlawfulness of possession, manu- facture, or distribution is for government- approved research projects. Taking these provi- sions into account, Justice Thomas concluded that there was clearly no statutory exemption. In 2005 the Supreme Court considered another case involving the use of marijuana. The State of California had enacted a statute in 1996 that permitted the possession and use of marijuana for medicinal purposes. Two plaintiffs sought to enjoin the federal government from prosecuting those who possessed marijuana, which the federal government has not recognized as having a medical use. The Ninth Circuit Court of Appeals ruled that the Controlled Substances Act was unconstitutional as applied to the case. The Supreme Court reviewed the decision and reversed the Ninth Circuit, holding in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), that the federal government was within its power to outlaw marijuana use. The decisio n in Raich appeared that it mightstrikedownlawsinninestatespermit- ting use of medical marijuana. However , several states and cities cont inued to approve medical marijuana laws in the years following Raich.As of 2009, 13 states had approved use of medical marijuana, and others wer e considering s tatutes that would permit use of the drug for medical reasons. FURTHER READINGS Brickey, Kathleen F. 1995. “Criminal Mischief: The Federali- zation of American Criminal Law.” Hastings Law Journal (April). Contrera, Joseph G. 1995. “The Food and Drug Adminis- tration and the International Conference on Harmo- nization.” Administrative Law Journal of the American University 8 (winter). Duke, Steven B. 1995. “Drug Prohibition: An Unnatural Disaster.” Connecticut Law Review (winter). “Executive Summary: Mandatory Sentencing.” 1995. CQ Researcher (May 26). Inciardi, James A. 1986. The War on Drugs. Palo Alto, Calif.: Mayfield. Justice Department. Bureau of Justice Statistics. 1993. Sentenc- ing in the Federal Courts: Does Race Matter? The Transition to Sentencing Guidelines, 1986–1990. December. Lowney, Knoll D. 1994. “Smoked Not Snorted: I s Racism Inherent in Our Crack Cocaine Laws?” Washington Univer- sity Journal of Urban and Contemporary Law 45 (winter). Lusane, Clarence. 1991. Pipe Dream Blues. Boston: South End Press. National Clearinghouse for Alcohol and Drug Information. 1992. A Short History of the Drug Laws. Powell, John A., and Eileen Hershenov. 1991. “Hostage to the Drug War: The National Purse, the Constitution, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 34 DRUGS AND NARCOTICS and the Black Community.” University of California at Davis Law Review 24. “Report of the Special Committee on Race and Ethnicity to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias.” 1996. George Washington Law Review 64 (January). Rowe, Thomas C. 2006. Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole Binghamton, N.Y.: Haworth Press. U.S. Sentencing Commission. 1992. Monitoring Data Files, April 1–July 1, 1992. CROSS REFERENCES Criminal Law; Criminal Procedure; Education Law; Employment Law; Privacy; Schools and School Districts; Sports Law. DRUNKARD One who habitually engages in the overindul- gence of alcohol. In order for an individual to be labeled a drunkard, DRUNKENNESS must be HABITUAL or must recur on a constant basis. A person who regularly drinks heavily but is sometimes not under the influence of alcohol would be con- sidereda drunkard, whereas a person who occa- sionally gets drunk would not. The test is the question of whether or not excessive drinking has become a frequent behavior pattern for a particular person. DRUNKENNESS The state of an individual whose mind is affected by the consumption of alcohol. Drunkenness is a consequence of drinking intoxicating liquors to such an extent as to alter the normal condition of an individual and significantly reduce his capacity for rational action and conduct. It can be asserted as a defense in civil and criminal actions in which the state of mind of the defendant is an essential element to be established in order to obtain legal relief. v DU BOIS, WILLIAM EDWARD BURGHARDT W. E. B. Du Bois was an African American intellectual, sociologist, poet, and activist whose fierce commitment to racial equality was the seminal force behind important sociopolitical reforms in the twentieth-century United States. Although Du Bois may not have the same name recognition as FREDERICK DOUGLASS or MARTIN LUTHER KING Jr., he is regarded by most historians as an influential leader. King himself praised Du Bois as an intellectual giant whose “singular greatness lay in his quest for truth about his own people.” Reflecting on Du Bois’s legacy, playwright Lorraine Hansberry noted that “his ideas have influenced a multitude who do not even know his name.” Born February 23, 1868, in Great Barring- ton, Massachusetts, during the Reconstruction period following the U.S. CIVIL WAR, Du Bois was of African, French, and Dutch descent. His tremendous potential was apparent to his fellow townspeople, who raised money in the local churches to send him to Tenne ssee’s Fisk University, a predominantly African American school. Du Bois earned a bachelor of arts degree from Fisk in 1888. He then attended Harvard University, where his professors included George Santayana and WILLIAM JAMES.Anoutstanding student, Du Bois received three degrees from Harvard: a bachelor’s in 1890, a master’sin 1891, and a doctor’s in 1895. Du Bois traveled extensively in Europe during the early 1890s and did postdoctoral work at the University of Berlin, in Germany. It William Edward Burghardt Du Bois 1868–1963 ▼▼ ▼▼ 18501850 19001900 19251925 19501950 19751975 18751875 ❖ ❖◆◆◆ ◆ ◆◆ 1868 Born, Great Barrington, Mass. 1895 Earned Ph.D. from Harvard University 1899 The Philadelphia Negro published 1903 The Souls of Black Folks published 1934–44 Returned to professorship at Atlanta University 1939–45 World War II 1944–48 Served as director of special research at NAACP 1950–53 Korean War 1949–54 Served as vice chairman of Council on African Affairs 1959 Won the Lenin Peace Prize 1961 Joined the American Communist Party; immigrated to Ghana 1963 Died, Accra, Ghana 1961–73 Vietnam War 1897–1910 Held professorship in economics and history at Atlanta University 1914–18 World War I 1910–32 Helped launch NAACP and served as editor of The Crisis 1935 Black Reconstruction in America published THE COST OF LIBERTY IS LESS THAN THE PRICE OF REPRESSION . —W. E. B. DU BOIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DU BOIS, WILLIAM EDWARD BURGHARDT 35 was there that he pledged his life and career to the social and political advancement of African Americans. When Du Bois returned to the United States, he accepted his first teaching position at Ohio’s Wilberforce University. He later taught at the University of Pennsylvania and at Atlanta University. Du Bois made his mark as an accomplished sociologist and historian, publishing ground- breaking studies on African American culture. In The Philadelphia Negro (1899), he interviewed 5,000 people to document the social institutions, health, crime patterns, family relationships, and education of African Americans in northern urban areas. In his 1903 book The Souls of Black Folk, he published a beautifully written collection of essays on the political history and cultural conditions of African Americans. Although his success in academe was well recognized, Du Bois chose to cut a bolder swath as a passionate social activist. He became a symbol of principled social protest on behalf of African Americans. Du Bois combined his scholarly endeavors with the profound outrage he felt over racial injustice and the South’s discriminatory JIM CROW LAWS. He used his position as a respected intellectual to decry the unequal treatment of African Americans and to push for fundamental change. According to King, Du Bois knew it was not enough to be angry. The task was to organize people so that the anger became a transforming power. As a result, King said, “It was never possible to kno w where the scholar Du Bois ended and the organizer Du Bois began. The two qualities in him were a single unified force.” Du Bois was a contemporary of BOOKER T . WASHINGTON, the head of Alabama’s famed Tuskegee Institute and the undisputed leader of the African American community at the turn of the twentieth century. A former slave, Washing- ton was a powerful figure who favored the gradual acquisition of CIVIL RIGHTS for African Americans. He believed that the best route for African Americans was agricultural or industrial education, not college. Although Du Bois agreed with some of Washington’s ideas, he eventually lost patience with the slow pace and agenda of Washington’s program. To Du Bois, Washington’s Tuskegee Ma- chine was mu ch too accommodating to the white power structure. Du Bois favored a more militant approach to achieving full social and political justice for African Americans. Because of Du Bois’s talent as a writer, he became an effective spokesperson for the opponents of Washington’s gradualism. He became the unambiguous voice of indignation and activism for African Americans. Du Bois insisted on the immediate rights of all people of color to vote; to obtain a decent education, including college; and to enjoy basic civil liberties. His beliefs led to the creation of the Niagara movement in 1905. This organization was formed by like-minded African Americans to protest Washington’s compromisin g approach to the so-called Negro problem. Du Bois preached power through achievement, self- sufficiency, racial solidarity, and cultural pride. He came up with a plan called the Talented Tenth, whereby a select group of African Americans would be groomed for leadership in the struggle for equal rights. The Niagara movement lasted until 1910 when Du Boi s became involved in a new national organization. In 1910 Du Bois helped launch the biracial National Association for the Advancement of Colored People ( NAACP). He became the group’ s director of research and the editor of the NAACP publication The Crisis. Du Bois’s work on The Crisis provided a wide audience for his W.E.B. Du Bois. FISK UNIVERSITY LIBRARY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 36 DU BOIS, WILLIAM EDWARD BURGHARDT views on racial equality and African American achievement. His writings influenced scores of African Americans who eventually made their demands for full citizenship heard in the nation’s legislatures and courtrooms. Du Bois was a guiding force in the NAACP until 1934 when his interest in COMMUNISM led him to leave the organization. On September 9, 1963, the N AACP Board of Directors recognized Du Bois’s contribu- tions to the CIVIL RIGHTS MOVEMENT in the following resolution: “It was Dr. Du Bois who was primarily responsible for guiding the Negro away from accommodation to racial SEGREGA- TION to militant opposition to any system which degraded black people by imposing upon them a restricted status separate and apart from their fellow citizens.” Du Bois was also a proponent of Pan- Africanism, a movement devoted to the political, social, and economic empowerment of people of color throughout the world. Later, he became active in trade unionism, women’s right s, and the international peace movement. Never one to shy away from controversy, Du Bois also embraced socialism and communism at a time when they were especially unpopular in the United States. He joined the American Commu- nist party in 1961, after winning the Lenin Peace Prize in 1959 from the former Soviet Union. Du Bois became increasingly disenchanted with the United States, and emigrated to Ghana in 1961. He was a citizen of that country at the time of his death in 1963. Du Bois’s influence on U.S. law was indirect but powerful. He spoke out eloquently against injustice and inspired generations of African Americans to work for racial equality. With 21 books to his credit and a zeal for organizing social protest, he helped plant the seeds for the civil rights and black power movements in the United States during the 1950s and 1960s. His unswerving commitment to equal rights helped bring about changes in the laws governing education, voting, housing, and public accom- modations for racial minorities. In 1900 Du Bois wrote Credo, a statement of his beliefs and his desire for social change. The poet in him was revealed when he wrote, I believe in Liberty for all men: the space to stretch their arms and their souls, the right to breathe and the right to vote, the freedom to choose their friends, enjoy the sunshine, and ride on the railroads, uncursed by color; thinking, dreaming, working as they will in a kingdom of beauty and love. FURTHER READINGS Berman, Nathaniel. 2000. “Shadows: Du Bois and the Colonial Prospect, 1925.” Villanova Law Review 45 (December). Clarke, John Henrik, et al., eds. 1970. Black Titan: W.E.B. Du Bois. Boston: Beacon. Du Bois, W.E.B. 1968. The Autobiography of W.E.B. Du Bois: A Soliloquy on Viewing My Life from the Last Decade of its First Century. New York: International. Logan, Rayford Whittingham, ed. 1971. W.E.B. Du Bois: A Profile. New York: Hill and Wang. Marable, Manning. 2005. W.E.B. Du Bois: Black Radical Democrat. Boulder, CO: Paradigm. Romano, Mary Ann, ed. 2002. Lost Sociologists Rediscovered. Lewiston, N.Y.: Mellen. Wolters, Raymond. 2004. Du Bois and His Rivals. Columbia: Univ. of Missouri. DUAL NATIONALITY An equal claim, simultaneously possessed by two nations, to the allegiance of an individual. This term is frequently perceived as synon- ymous with dual citizenship, but the latter term encompasses the concept of state and federal citizenship enjoyed by persons who are born or naturalized in the United States. Under INTERNATIONAL LAW, the determination of citizenship when DUAL NATIONALITY is involved is governed by treaty, an agreement between two or more nations. A person who possesses dual citizenship generally has the right to “elect,” or to choose, the citizenship of one nation over that of another, within the applicable age limit or specified time period. A person could be a U.S. citizen because of his or her birth in the United States and a citizen of a foreign country because his or her immigrant parents returned with their child to their native land. Foreign law could deem the child to be a citizen of the parents’ native land, but it cannot divest the child of U.S. citizenship. Under federal law, a native-born or natural- ized U.S. citizen relinquishes his or her U.S. citizenship if the individual procures NATURALI- ZATION in a foreign state through a personal application, or pursuant to an application filed in his or her behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody. An exception, however, provides that the individual will not lose his or her U.S. citizenship as the conse- quence of the naturalization of a parent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DUAL NATIONALITY 37 . Souls of Black Folks published 19 34 44 Returned to professorship at Atlanta University 1939 45 World War II 1 944 48 Served as director of special research at NAACP 1950–53 Korean War 1 949 – 54 Served. Sentencing. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DRUGS AND NARCOTICS 33 smoking marijuana. The federal government contested the constitutionality of these laws, believing that federal drug laws. History of the Drug Laws. Powell, John A., and Eileen Hershenov. 1991. “Hostage to the Drug War: The National Purse, the Constitution, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 34 DRUGS