Professor David Friedman
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.
Categories of Drugs
The basic areas of drugs as set out and discussed in class for Future
Imperfect are as follows:
Enhancement Control Function
Euphoria stimulant obedience Ritalin/Albuterol
Mood performance enhancer pheromones
Psychedelic sleep suppressant hypnosis Anti-depressant
sexual enhancer malodorant
nutritional supp truth
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
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.
over the counter drugs that require no prescriptions or
those that are limited to the doctor’s prescription, negligible risk of
dependency or abuse.
Schedule Manufacturing Quotas Dispensing
Limits Drugs included Punishments
I Yes research only Heroin, Marijuana 15
II Yes Written Rx, no refills
Morphine, Oxycocone 15 y/$125k
Written or oral Rx Codeine, Glutethimide 5y/$50K
IV No Written
or oral Rx Valium, Meprobamate 3y/$25K
V No Over the counter Cough
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
A challenge to the
classification of Marijuana being placed in schedule I was set forth in 1973 in
Norml v Bell
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
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.
Ritchie v United States,
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
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?
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
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
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 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
“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
Babbin also cites
intelligence sources that say “[Al qaeda] are terrified of what the result
[of truth serum] might be, and terrified of losing
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
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.
course, can easily change once the government determines that they cause some
type of unwanted advances or sexual behavior.
 Drug Abuse and the Law
Haddox and Uelman,Volume One, West Publishing 2001 Pages
Substances Act, 21 U.S.C. §811(c),
811(b). Norml v Bell,
488 F. Supp 123 (D.D.C.
Id. Townsend v Sain,
U.S. 293 (1963) Ritchie v
No. C 00-03940 MHP, 200 U.S. Dist. LEXIS
22075 Charles Thomas Sell V
United States ,
539 U.S. 166; 123 S. Ct.2174; 156 L.Ed. 2d
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CBSNews Website, found at http://www.cbsnews.com/stories/2003/04/07/60II
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Post-Intellingencer Website, found at http://www.seattlepi.nwsource.com/opinion/62504_drugsoap.shtml
last accessed on April
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