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