Drugs, Addiction, and the Law

by Cohen, Peter J.

• ISBN13: 9780890892275
• ISBN10: 089089227X
• Edition: 1st
• Format: Paperback
• Copyright: 2004-02-09
• Publisher: CAROLINA ACADEMIC PRESS

Summary

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

Author Biography

Peter J. Cohen, a physician and attorney, received his MD from Columbia University College of Physicians and Surgeons in 1960 and JD from the Georgetown University Law Center in 1995

Table of Contents

Table of Cases	xv
Table of Authorities	xix
Chapter 1 The Contrast between "Legal" and "Scientific" Reasoning	3	(10)
Neither Science nor Law Is a Monolithic Discipline-Their Differences Do Not Always Permit a "Bright Line" Analysis	4	(9)
Methodologies Contrasted	4	(2)
Degree of Certainty Required for "Proof"	6	(1)
Role of Precedence	6	(2)
Professional Ethos (Law)	8	(1)
Professional Ethos (Science)	9	(2)
Predictability and Indeterminacy	11	(2)
Chapter 2 Public Health, the Law, and Society	13	(10)
The Scope and Inherent Problems of Public Health	14	(2)
Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Good Science Can Yield Good Public Policy While Not Precluding Debate	16	(1)
Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Tragic Public Policy Results when Science Is Ignored and Replaced by Prejudice	16	(2)
Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Epidemiology, Statistics, and Profiling	18	(1)
Public Health Law, a Confluence of "Legal" and "Scientific" Reasoning-Can the "Least Worst Solution" Be the "Best?"	19	(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?	20	(1)
Factors Involved in Balancing Benefits and Burdens Are Not Absolute but Comprise a Spectrum	21	(2)
Chapter 3 Acute and Chronic Toxicity of Some Abusable Drugs	23	(14)
Alcohol	23	(1)
The Opioids (Heroin, Morphine, and Codeine are Examples)	24	(2)
Cocaine and Amphetamines	26	(1)
Marijuana	27	(5)
Marijuana and Cognition	29	(1)
Marijuana and Mental Illness	30	(1)
Is Marijuana a "Gateway" Drug?	30	(2)
"Ecstasy" (Methylenedioxymethamphetamine or MDMA)	32	(1)
Potent, Pathological, and Permitted	33	(2)
A Prologue	35	(2)
Chapter 4 The History of Attitudes towards Illegal Drugs	37	(10)
"Herbal Remedies" of Yesteryear	40	(1)
An Outline of Our Early History of Dancing with Drugs	40	(3)
The Coca-Cola® Story Is Illustrative of the Connection between Racism and Drug Policy	43	(2)
Free Will and Biology: Can There Be Mens Rea Absent the Mens?	45	(2)
Chapter 5 The Epidemiology of Drug Use	47	(8)
Useful Definitions	47	(1)
Some Techniques Used to Gather Data Relating to Drug Use	48	(1)
General Problems Associated with Surveys-Self-Reports or Objective Data	49	(1)
Unjustified Conclusions	49	(1)
The Data	50	(2)
National Household Survey on Drug Abuse	50	(1)
Drug Use Forecasting (begun in 1987 by National Institute of Justice)	50	(1)
DAWN (Drug Abuse Warning Network)	51	(1)
National Institute on Drug Abuse (NIDA)-Sponsored Self-Reporting Survey	52	(1)
National Comorbidity Survey (NIDA)	52	(1)
What Is the Epidemiology of Alcohol Abuse and Dependence (Alcoholism)? 12	52	(1)
A Perspective: How Does the Incidence of Death Related to Illegal Drug Use Compare with Other Major Causes?	53	(2)
Chapter 6 The Science of Drug Dependence (Addiction)	55	(10)
How Is Drug Dependence (Addiction) Defined in the Medical Literature?	56	(1)
Science-Not Ideology	57	(3)
Understanding Drug Addiction: Insights from the Research	58	(1)
Alan I. Leshner, Ph.D.	58	(1)
A New Paradigm	58	(1)
The Mind and the Brain	59	(1)
Basic Research	60	(1)
Conclusions and the Future	60	(1)
Implications for Policy	60	(1)
How Should Society and the Law Deal with "Fault"?	61	(1)
Causation and Disease-Is It Appropriate to Assign "Fault"?	62	(3)
Chapter 7 The Conflict between Individual Autonomy and Responsibility to Society	65	(12)
Mill (the Person) v. Mill (the Philosopher)	68	(1)
Alternative Paradigms	68	(2)
When Individual Actions Do Not Impact Society, How Might the Law Behave?	70	(7)
Bowers v. Hardwick	70	(1)
478 U.S. 186 (1986)	70	(2)
Lawrence v. Texas, 123 S. Ct. 2472 (2001)	72	(5)
Chapter 8 Illegal Drugs-The Doctor's Dilemma	77	(36)
The Harrison Narcotic Act-History and Background	78	(1)
Early History of Federal Drug Regulation-Evolution of the Food and Drug Act	78	(2)
International Affairs and the United States	80	(2)
The Shanghai Conference and Foster Bill	82	(3)
The Hague Opium Conferences	85	(1)
Evolution of the Harrison Narcotic Act	86	(1)
Final Passage of the Harrison Act	87	(1)
The Harrison Narcotic Act-Potential Problems in Interpretation	88	(2)
What is the "Legitimate Practice of Medicine"-Who Decides?	90	(1)
Statutory Interpretation and the Harrison Act	91	(4)
The Courts v. "Somebody Who Was There"	91	(1)
The "Poison Pill"	92	(1)
If Only Congress Had the Courage	92	(1)
Did the Harrison Act Deal with Treaties, Taxes, or Taboos?	93	(2)
The Harrison Narcotic Act-Early Cases	95	(12)
United States v. Jim Fuey Moi	95	(1)
241 U.S. 394 (1916)	95	(3)
United States v. Doremus	98	(1)
249 U.S. 86 (1919)	98	(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