Legal Research
Mind Drugs
Nona Akana
Professor David Friedman


MIND DRUGS


There are several categories of drugs that can be considered as mind altering drugs, and the categories will be consistent with the chapter in Future Imperfect for simplicity. Depending upon which schedule the drug is placed on determines their eligibility to be legalized or not. Drug ingestion has also been used as defenses to criminal acts if taken either voluntarily or involuntarily, and has been approved by the courts to be used forcibly to control dangerousness and under rare circumstances to restore a defendant to competency for trial. The government also determines when and which drugs should be deemed illegal, often based on events that occur in society, not necessarily based on the dangerousness of the drug.

The basic areas of drugs as set out and discussed in class for Future Imperfect are as follows:

Recreational Enhancement Control Function Changing
Euphoria stimulant obedience Ritalin/Albuterol (ADHD)
Mood performance enhancer pheromones Anti-psychotic
Psychedelic sleep suppressant hypnosis Anti-depressant
sexual enhancer malodorant
nutritional supp truth serum
anti-aging aphrodisiacs


The Federal Controlled Substances Act was enacted in 1970 to establish a uniform and comprehensive pattern of control and categorization over the manufacture, distribution, and import drugs. It categorized drugs according the three criteria: 1) the potential for abuse; 2) risk of dependence; 3) currently accepted medical use. Drugs were divided and placed into five schedules:

Schedule I: substances with no currently accepted medical use regardless of the potential for abuse OR the risk of dependency. Currently accepted medical use was limited to a drug that is ready for mainstream prescription and did not include drugs that offered or provided therapeutic values. Substances only used for “true research”.

Schedule II: substances that require a written prescription with no refills, substantial risk of potential abuse and risk of dependence.

Schedule III: substances that require a written or oral prescription with refills authorized for up to five times in six months, some risk of abuse and/or dependency.

Schedule IV: substances that require a written or oral prescription with refills authorized for up to five times in six months, minimal risk of abuse and/or dependency.

Schedule V: over the counter drugs that require no prescriptions or those that are limited to the doctor’s prescription, negligible risk of dependency or abuse.^[1]

I Yes research only Heroin, Marijuana 15 years/$125K
LSD, peyote, Hashish
Psilocytin

II Yes Written Rx, no refills Morphine, Oxycocone 15 y/$125k
Methadone, Cocaine,
Amphetamines,
Barbiturates, PCP,
Methaqualone, Meth-
ylphenidate

III No Written or oral Rx Codeine, Glutethimide 5y/$50K

IV No Written or oral Rx Valium, Meprobamate 3y/$25K

V No Over the counter Cough syrups w/codeine 1y/$10K^[2]




Punishments and quotas are set up for the schedules as well, and there has been no significant change to the schedules since 1970 when the Act went into effect. The government needs only a rational basis for placing the drugs in each category because the stated purpose was that the Act was designed to:

Deal in a comprehensive fashion with the growing menace of drug abuse in the United States (1)through providing authority for increased efforts in drug abuse prevention and rehabilitation of users, (2) through providing more effective means for law enforcement aspects of drug abuse prevention and control, and (3) by providing for an overall balanced scheme of criminal penalties for offenses involving drugs.^[3]

A challenge to the classification of Marijuana being placed in schedule I was set forth in 1973 in Norml v Bell^[4] because of the assertion that the Comprehensive Drug Abuse Prevention and Control Act of 1970 (DAPCA), U.S.C. §§ 801-966 and the District of Columbia Uniform Narcotic Drug Act, D.C. Code §§ 33-401 to 425 (1973) were unconstitutional in prohibiting the private possession of marijuana. After going through an administrative hearing and evidentiary hearings for almost six years, the court ruled that the government needs only a rational basis for placing drugs in the categories related to the legitimate state interest, and therefore marijuana was kept in schedule I along with heroin, LSD, and peyote. Marijuana remains on the most restrictive schedule, schedule I, until today.
The majority of drugs listed on the sections from Future Imperfect would be in one of the five categories structured by the Federally Controlled Substances Act. The substances that would most likely be left out of the schedules are the nutritional supplements, certain stimulants such as caffeine and tobacco, pheromones and aphrodisiacs.



Drugs as a Defense
Drug ingestion has been used as various types of defenses for criminal wrongdoing, all with mixed results. In Townsend v Sain^[5] the petitioner was convicted of murder and sentenced to death. He then petitioned for the Federal District court for a writ of habeas corpus claiming that his confession was involuntary and that the use of “truth serum” or hycosine was equivalent to his will being overborne and not the product of free will. The court found that the denial of his habeas corpus petition was a deprivation of his constitutional rights because the use of a chemical during interrogation was equivalent to physical intimidation or psychological pressure, which would result in his confession being coerced and not of his own free will.
In Ritchie v United States^[6], plaintiff alleged that he was drugged surreptitiously while he was at a company party during his employment as a Deputy United States Marshal. Plaintiff proceeded to several bars after the party and then committed an armed robbery. After his arrest he subsequently resigned from the Marshal service, only to discover years later that he was probably given food and beverage laced with LSD as part of a national federal program called “MKULTRA”. Plaintiff produced extensive records of newspaper and television coverage that documented the federal mind-control experiment, and filed a complaint in 2000 (43 years after the party and robbery) against the Central Intelligence Agency (“CIA”) and the Drug Enforcement Agency (“DEA”) as a tort cause of action. The United States filed a motion for summary judgment based on four theories: plaintiff’s claims were 1)barred by the federal Employment Compensation Act; 2)were excluded from the FTCA because they contemplated intentional acts; 3) were time-barred; and 4)were barred by laches. The United States Motion was denied in its entirety. Plaintiff’s claim of involuntary intoxication was allowed to proceed. Dr. S. Alex Stalcup believes that drug addiction can be used as a defense because it is involuntary and the person that is on drugs is hopelessly at the mercy of the drug. Dr. Stalcup runs the New Leaf Treatment Center in Lafayette, California and has based his conclusions on medical facts as well as years of contact with addicted individuals. The medical fact that Dr. Stalcup relies on for his assertion that drug addiction is involuntary and akin to a disease is the fact that certain drugs are pleasure producing chemicals and act on and stimulate the pleasure receptors in the brain. When a person abuses drugs in certain quantities over a long period of time, the drug damages those pleasure receptors, a phenomenon known as neuroadaptation. When the pleasure drive is frustrated, such as when the person cannot get the drug to stimulate the pleasure receptors, they experience dysphoria. When the person is able to stimulate the drive appropriately, the person experiences the reward of pleasure. After continuous use of the drug, the pleasure receptor becomes so damaged that it takes more and more of the drug to simply get a small amount of pleasure, and thus the uncontrollable cravings and desires to obtain more drugs. Addiction is when a person no longer has control over the use of the drug, but rather the drug controls the person. Dr. Stalcup believes that a person would not engage in certain activities if they were not addicted to the substance and that this in turn is a defense to many criminal activities. The use of drugs is not volitional but in fact compulsory. Dr. Stalcup believes that the mitigating questions to be asked during an inquiry into the motivation behind a criminal act are:

1) Would this have happened without drugs?

2) Would drugs explain aspects of the client’s behavior?

3) Is the client an addict?

4) What information is needed to assess the role of the drugs?
If the answers to these questions would indicate that the client was a drug addict, Dr. Stalcup says that the defense of involuntary or compulsory action be available. Even though the concept has not had widespread success, there are many changes in the criminal arena that use many of the same concepts that dr. Stalcup promulgates, such as the DEJ (drug diversion) program and the enactment of Proposition 36 that allows for treatment instead of incarceration. Both California programs recognize the fact that the defendants are addicted to substances and treatment is more advantageous than incarceration.
Drugs for Compulsory Trial Competence
The United States Supreme Court ruled in Sell v US^[7] that a court must look at four factors to determine whether a defendant can be involuntarily medicated in order to render them competent to stand trial. Plaintiff Sell was a former practicing dentist that was arrested for fictitious insurance claims and later trying to intimidate a witness and eventually trying to kill an FBI agent. Dr, Sell had a long and documented history of mental illness and was confined to the state mental health hospital after losing his composure at a court hearing. The government sought to involuntarily medicate him without a showing that he was dangerous but rather based on their interest to bring him to trial. Sell filed various motions, and the court ruled that the government could not involuntarily medicate him simply based on trial competence, but that other factors must be considered. The court did not rule out the possibility that there would be circumstances in which the government would be allowed to do this, but those instances would be rare. The factors to be considered are:

1) Does the government have an important interest in forcibly medicating the individual?

2) Does involuntarily medicating the individual further that interest?

3) Is involuntary medication necessary to further that interest?

4) Is involuntary medication medically appropriate, i.e., in the best interests of the individual?
Regulation and illegalization of current drugs
Drugs do not become illegal substances until the government decides that they are in some way dangerous or that they need to be regulated because of overuse or abuse. Rohhyponol, although technically available through prescription, is a sedative similar in nature to Valium but not given much attention until it began to emerge as the new “date rape” drug.^[8] A “control” drug by categorization of Future imperfect, Rohypnol would be on schedule IV of the Federal Controlled Substances Act, far from the stringently regulated schedule I where marijuana sits. One could argue that the date rape drug is far more dangerous, and should be regulated closer. Although in Townsend we saw that the government cannot administer “truth serum” to defendants in an attempt to coerce them to confess, truth serums are being considered today to aid in the intelligence gathering of captured terrorists. Although the military is employing other techniques to try to get information out of the captives such as sleep deprivation, disorientation, and the withholding of food and water, the use of truth serum is a real possibility according to deputy undersecretary of defense during the Bush administration, Jed Babbin. “If you torture someone, you’re inflicting pain. Possibly permanent damage. Quite frankly, so called truth drugs, if used properly, under medical supervision, are completely safe.”^[9] Babbin also cites intelligence sources that say “[Al qaeda] are terrified of what the result [of truth serum] might be, and terrified of losing control.”^[10] Truth serum confessions are not admissible in court, but are not yet illegal for use. The government decides which mind-altering drugs are to be illegal and legal, especially in the case of anti-psychotic drugs. The mental health movement has encouraged people to deal with their problems by the use of prescription psychiatric drugs, and yet decides that marijuana and cocaine are illegal for all purposes. As Keith Hoeller, director of the Center of the Study of Psychiatry, points out:

The Drug Enforcement Agency, law enforcement agencies and the criminal justice system all are charged with stopping American citizens from using mind-altering drugs....But our local, state and federal governments are not in fact against Americans using mind-altering drugs at al. Their efforts are aimed at stopping Americans from using certain illegal, mind-altering drugs such as marijuana, cocaine and heroin. At the same time, other government agencies (the National Institute of Mental Health, for example) are doing everything they can to get Americans to take legal, mind-altering drugs.^[11]

Some nutritional supplements are legal, and yet steroids are illegal. Steroids are arguable the most effective form of nutritional supplement, and yet the government determines them to be too dangerous to be legal. Certain weight loss supplements were once legal such as Phen-Fen and Ephedrine, but the government wishes to curb their use so they restrict them. Aphrodisiacs and pheromones, by all accounts, appear to be legal and available for purchase on the open market.^[12] This, of course, can easily change once the government determines that they cause some type of unwanted advances or sexual behavior.

^[1] Drug Abuse and the Law Sourcebook, Haddox and Uelman,Volume One, West Publishing 2001 Pages 3.1-3.6
^[2] Federal Controlled Substances Act, 21 U.S.C. §811(c), 811(b).
^[3] Norml v Bell, 488 F. Supp 123 (D.D.C. 1980)
^[4] Id.
^[5] Townsend v Sain, 372 U.S. 293 (1963)
^[6] Ritchie v United States, No. C 00-03940 MHP, 200 U.S. Dist. LEXIS 22075
^[7] Charles Thomas Sell V United States , 539 U.S. 166; 123 S. Ct.2174; 156 L.Ed. 2d 197
^[8] Seattle Post-Intellingcer found at http://www.seattlepi.nwsource.com/opinion/62504_drugsoap.shtml, last accessed on April 1,2004.
^[9] CBSNews Website, found at http://www.cbsnews.com/stories/2003/04/07/60II, last accessed on April 2, 2004.
^[10] Id.
^[11] Seattle Post-Intellingencer Website, found at http://www.seattlepi.nwsource.com/opinion/62504_drugsoap.shtml, last accessed on April 1,2004.
^[12] http://maxattract.com, and http://qualitychineseherbs.com, last accessed on April 2, 2004